September 17, 1996

In re: Larry Adkins/Cabinet for Human Resources

Open Records Decision

This matter comes to the Attorney General on appeal from the Cabinet for Human Resources, Department for Social Insurance's response to Mr. Larry Adkins's open records request to inspect records relating to an AFDC overpayment claim. Specifically, Mr. Adkins asked to inspect the following documents:

Claim #000521596-01 AF. All records of AFDC overpayment. Records of amount and date original overpayment was ordered. All records showing date, amount and by who, or from what source each payment was made since date of original debt up to present date. Records showing balance owed on overpayment debt.

Mrs. Royalty, Field Services Supervisor, Department of Insurance, responded to Mr. Adkins's request by letter informing him of the original balance of the claim, amount of payments to date, and the balance owed.

In his letter of appeal, Mr. Adkins states that the Department's response was not responsive to his request because the agency did not provide him with the records he requested; the information given him did not help because the amount of the original debt was an amount different than that stated in Mrs. Royalty's letter and that his request form and check to cover copying charges had been returned to him.

After receipt of this office's notification of appeal, Mrs. Royalty contacted Mr. Adkins by letter, advising him that, after reviewing his request and looking into the matter further, she found that there was another claim involving a tax intercept for back child support payments but that she did not have access to those records. She informed him that, in order to get the information he was seeking regarding this claim, he would have to contact: DCSE, P. O. Box 289, Unit 2, Danville, Kentucky 40423, ATT: Kim Milburn. Mrs. Royalty forwarded a copy of her letter to Mr. Adkins to the Attorney General.

We are asked to determine whether the Department for Social Insurance's response was consistent with the Open records Act. For the reasons which follow, we conclude the Department's actions were consistent in part and inconsistent with the Act.

Mr. Adkins requested to inspect the Department's records to obtain the information he sought. In responding to Mr. Adkins's initial request, Mrs. Royalty attempted to help him by providing him with the information she thought he was seeking relative to an AFDC overpayment claim rather than with a copy of the actual record. This office has said that an open records requester is entitled to inspect requested records rather than be given information from or a summary of the records. See, for example, OAG 82-396. However, KRS 61.878(4) provides:

If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination.

Thus, if the records contain confidential (excepted) information, KRS 61.878(4) permits the agency to separate or mask the excepted information from the records. To the extent that the Department did not provide Mr. Adkins with a copy of the records initially requested from which it took the supplied information, its response was inconsistent with the Open Records Act. This is so, even though the records apparently did not contain the information he was seeking. However, this inconsistency is mitigated by the fact that the Department's subsequent response notified Mr. Adkins that it did not have access to the records which contained the information he was seeking and notified him of the location and the name of the custodian of those records.

KRS 61.872(4) provides:

If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records

This office has consistently recognized that a public agency cannot afford a requester access to records which it does not have, or which do not exist. 93-ORD-134. As required by KRS 61.872(4), Mrs. Royalty informed Mr. Adkins that she did not have access to those records and notified him of the location and the custodian of the requested records. Accordingly, it is the decision of this office that the Department's subsequent response was proper and consistent with the Open Records Act.

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.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Larry Adkins #119012 EK D2

Eastern Kentucky Correctional Complex

P. O. Box 636

West Liberty KY 41472

Virginia Royalty

Field Service Supervisor

Department for Social Insurance

Cabinet for Human Resources

111 Edgewood Plaza

Nicholasville KY 40356