05-ord-243 October 31, 2005 In re: Steven J. Farmer/Cabinet for Health and Family Services Open Records Decision

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October 31, 2005

In re: Steven J. Farmer/Cabinet for Health and Family Services

Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services violated the Kentucky Open Records Act in failing to respond upon receiving the request of Steven J. Farmer for copies of the “’Packet’ and ‘Case Plan’ with which Mr. Farmer is in non-compliance.” Upon receiving notification of Mr. Farmer’s appeal (alleging that the CHFS is “in procedural defect” [sic] for not responding to his request for “documented proof” that “’Reasonable Efforts’ were ever pursued”), Jon R. Klein, Assistant Counsel, responded on behalf of the CHFS. Contrary to Mr. Farmer’s assertion, the CHFS did respond to his request dated August 27, 2005 (received on September 8, 2005), in a letter dated September 13, 2005, a copy of which is attached to Mr. Klein’s response along with a copy of the enveloped marked “RETURN TO SENDER-UNABLE TO FORWARD.” As correctly observed by Mr. Klein, the address to which the CHFS directed this response is “the same address Mr. Farmer used as his return address in the present appeal.” Because the CHFS fully complied with KRS 61.880(1) by issuing a written response to Mr. Farmer within three business days, and offering a credible explanation as to why no responsive records exist aside from the court order provided, nothing more is required; the CHFS obviously cannot be faulted for directing a response to the only address provided.
In relevant part, Mr. Klein advised Mr. Farmer as follows:
What the Cabinet has is a copy of an Order entered on June 30, 2004, which states that “Steven Farmer shall submit to psychological evaluation by psychiatrist prior to any further consideration of reunification with [N.J.F.]; complete release and disclosure of report to be provided by Steven Farmer.”
Enclosed with Mr. Klein’s original response was a copy of the referenced order; Mr. Klein forwarded copies of same to Mr. Farmer as well as this office on October 12, 2005. In conclusion, Mr. Klein explains that the order “does not allow the Cabinet to move forward with any reunification plans.” Accordingly, the noncompliance to which Mr. Farmer refers must be relative to the order of Bracken District Court; it is axiomatic that the CHFS is bound by such an order. See 05-ORD-084; 05-ORD-066.
As in 05-ORD-112 (a prior appeal filed by Mr. Farmer against the CHFS), the CHFS has apparently provided Mr. Farmer with a copy of the only existing record which is responsive to his request. In our view, 05-ORD-109 and 05-ORD-115 (pp. 2-3), copies of which are attached hereto and incorporated by reference, are controlling on the facts presented. Because the CHFS cannot produce for inspection or copying records that do not exist, and has provided a credible explanation as to why no additional responsive records were generated, the response of the CHFS is affirmed in its entirety.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Gregory D. Stumbo

Attorney General

Michelle D. Harrison

Assistant Attorney General

Distributed to:
Steven J. Farmer

P.O. Box 603

Dyersburg, TN 38025-0603
Carrie Hall

Records Management Section

Division of Protection and Permanency

Cabinet for Health and Family Services

275 East Main Street, 3E-G

Frankfort, KY 40621-0001

Jon R. Klein

Assistant Counsel

Office of Legal Services

Cabinet for Health and Family Services

275 East Main Street, 5W-2

Frankfort, KY 40621

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