Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from Eastern Kentucky Correctional Complex Medical Records Department's actions relative to an open records request made by Mr. Joseph S. Stephens on August 20, 1992. Mr. Stephens, an inmate at EKCC, indicates that he requested copies of his medical and dental records on that date, and again on August 24, 1992, and August 28, 1992. He has been unsuccessful in securing the records to date.
We have been advised by Ms. Joyce Cordero, Medical Secretary at EKCC, that the Records Department did not receive a written request until August 28, 1992. No action was taken in processing the request until September 11, 1992. Ms. Cordero stated that the delay was occasioned by staff shortages and the volume of requests received by the Department.
The single issue presented in this appeal is whether the intent of the Open Records Act is being subverted by the Medical Records Department at EKCC short of denial of inspection pursuant to KRS 61.880(4). We conclude that the Medical Records Department violated the Act by failing to notify Mr. Stephens within three business days whether his request would be honored, and if so, arranging for inspection or copying of the records.
KRS 61.880(1) contains specific guidelines for an agency's response to a request under the Open Records Act. That statute provides in part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days excepting Saturdays, Sundays and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The Medical Records Department's action, relative to Mr. Stephen's request, was procedurally deficient insofar as no response was issued within three working days. Some nine working days elapsed between the date of his request and the date the Department initiated action on the request. "Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at p. 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request." See also, OAG 91-200; OAG 92-35. In the latter opinion, we held that "a determination of what is a 'reasonable time' for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses," as well as the difficulty in accessing and retrieving those documents. OAG 92-35, at p.6.
KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and ate, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.
Under the terms of that provision, the Department should have advised Mr. Stephens within three days of receipt of his request whether the records would be made available for review, or provided him with a detailed explanation of the cause of the delay and arranged for inspection at the earliest possible date. The Department's failure to do so was inconsistent with the Open Records Act. We urge the Department to review the cited provisions to insure that future responses conform to the Act.
While we appreciate that a records department in a correctional facility is uniquely situated in that it must comply with Corrections Policies and Procedures in responding to an enormous volume of open records request, we do not believe that this relieves it of its duty to comply with the procedures set forth in the Act, and applicable to all public agencies. At a minimum, the records custodian should respond to a request for records within three business days by advising the requester whether his request will be honored, and if so, arranging for inspection or copying at the earliest possible date. If it has not already done so, the Medical Records Department at EKCC should immediately notify Mr. Stephens whether it intends to provide him with copies of the requested records, and if not, state the specific exception upon which it relies in denying his request.
The Medical Records Department at EKCC may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.