NOT TO BE PUBLISHED

96-ORD-167

July 26, 1996

In re: J. Guthrie True/Green County Fiscal Court and Jane Todd Crawford Memorial Hospital

Open Records Decision

This matter comes to the Attorney General on appeal from the Green County Fiscal Court's response to Mr. J. Guthrie True's open records request directed to the Jane Todd Crawford Memorial Hospital and the Green County Fiscal Court for records concerning his client, Patrick Ferry, who had been employed as a Certified Registered Nurse Anesthetist at the hospital.

In his July 12, 1996 letter of appeal, Mr. True states that on June 24, 1996, he made an open records request upon the Green County Attorney and, as of the date of his letter of appeal, he had received no response to his request.

Subsequent to receipt of Mr. True's letter of appeal and as is authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Sam W. Moore II, Green County Attorney, on behalf of the Fiscal Court, provided this office and Mr. True with a response regarding the issues raised in this open records appeal.

In his response, Mr. Moore states that due to an illness in which he had been hospitalized for emergency medical treatment, he had been unable to meet the statutory deadline in responding to Mr. True's open records request. As to the substantive issue, Mr. Moore states that the Green County Fiscal Court has no records concerning Patrick Ferry. He further states that, although the Jane Todd Crawford Memorial Hospital is a “county owned” hospital, it is totally operated by a separate and autonomous Board of Directors and neither the county attorney nor county judge/executive is the custodian of the hospital's records. Mr. Moore indicates that it is his understanding that the hospital does have records concerning Mr. Ferry and the custodian of those records would be Mr. Larry Craig, the hospital administrator. It was further his understanding that Mr. Stephen S. Frockt, attorney for the hospital, would be responding to Mr. True's request on behalf of the hospital.

We are asked to determine whether the Green County Fiscal Court's response was consistent with the Open Records Act. For the reasons which follow, we conclude that Fiscal Court's actions were consistent in part and inconsistent in part with the Act.

KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. To the extent that the Fiscal Court did not timely respond within three working days, it was technically and procedurally in violation of the Act.

However, we conclude this procedural deficiency is mitigated by the Fiscal Court's subsequent response which informed Mr. True that it did not have the requested records; that the hospital had the requested records; that the custodian of those records was Mr. Larry Craig, the hospital administrator; and that Mr. Frockt, attorney for the hospital, would be responding on behalf of the hospital.

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. The Fiscal Court's response was proper to the extent that the it could not provide access to records which it did not have. Moreover, 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.

As required by KRS 61.872(4), Mr. Moore notified Mr. True of the location and custodian of the requested records. Accordingly, it is the decision of this office that, as to the substantive issue presented, the Green County Fiscal Court's response was proper and in substantial compliance 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

jmr/837

Distributed to:

J. Guthrie True

Johnson, Judy, True & Guarnieri

326 West Main Street

Frankfort KY 40601

Sam Moore II

Green County Attorney

P. O. Box 146

Greensburg KY 42443

Stephen S. Frockt

P. O. Box 377

Prospect KY 40059