Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in the submission of a request for various records by Claud Stacy White, an inmate at Kentucky State Penitentiary, to the Kentucky Correctional Psychiatric Center in April, 1995. Those records are identified as:
Minus only Victora [sic] Yunker's evaluation the entire file from November 7, 1991 to November 27, 1991 . . .; medical and physical testings and results; clinical psychologist Ph.d. Mr. Harwell F. Smith's full report; social worker Mr. Kevin Neathery's full report; Ms. Leslie Swanson's full report; Ms. Pam Ledgewood's full report; and any transportations other than from/to Fayette County Jail.
On behalf of KCPC, Ms. Sharon W. Proctor, Director of Medical Records, denied Mr. White's request on April 3, 1995, advising him as follows:
The medical records which you requested were generated as a result of a court ordered evaluation for competency to stand trial.
The order of the court was specific as to the distribution of the information. These records will be subject to release only upon order from a court of competent jurisdiction.
Insofar as these records were generated for the court, they are not subject to the Open Records Act. See OAG 91-193.
In addition, Ms. Proctor noted, Mr. White's physician has indicated that release of this information is "medically contraindicated."
It appears that Mr. White also requested copies of records from the Fayette, Jessamine, and Woodford circuit court clerks. However, he did not submit written documentation to substantiate this claim. Accordingly, pursuant to 40 KAR 1:030 Section 1, we decline to consider the propriety of their actions relative to these requests. It should be noted, however, that the Attorney General has formally recognized that records of the courts are not governed by the Open Records Act. Ex parte Farley, Ky., 570 S.W.2d 617 (1978);
York v. Commonwealth, Ky.App., 815 S.W.2d 415 (1991); KRS 26A.200; KRS 26A.220; 94-ORD-105. In Farley, supra at 624, the Kentucky Supreme Court observed, "The custody and control of the records generated by the court in the course of their work are inseparable from the judicial function itself, and are not subject to regulation."
We are asked to determine if KCPC violated the Open Records Act in denying Mr. White's request. For the reasons set forth below, we conclude that although KCPC's response was procedurally deficient, it was substantively correct, and Mr. White was properly denied access to his medical and psychological records. Because KCPC failed to respond in any fashion to Mr. White's request for Kevin Neathery's, Leslie Swanson's, and Pam Ledgewood's "reports," as well as his request for records of "transportation, " we direct it to immediately issue a response to these unanswered requests stating whether it will honor them. If KCPC denies all or any portion of these requests, it should cite the specific exception authorizing nondisclosure and briefly explain its application to the record or records withheld per KRS 61.880(1). If KCPC is not the custodian of these records, it should so notify Mr. White, and furnish him with the name and location of the official custodian of these records per KRS 61.872(4).
We begin by noting that KCPC's response was procedurally deficient. KRS 61.880(1) contains specific guidelines for agency response to an open records request. That statute provides:
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 record 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 action.
Although Ms. Proctor advised Mr. White that the medical and psychological records which he wished to inspect were generated as a result of a court ordered evaluation, and that the court had limited distribution to certain individuals, not including Mr. White, she did not cite a specific exception authorizing nondisclosure or explain how the exception applied to the records withheld.
It is KCPC's position that the records requested by Mr. White are court records, and not subject to inspection under the rule announced in OAG 91-193. While we concur with Ms. Proctor in the view that Mr. White's medical and psychological records were generated for the court in the course of its work, and are therefore not governed by the Open Records Act, we note that in the cited opinion the public agency, there the circuit court clerk's office, invoked KRS 61.878(1)(j), now codified and hereinafter referred to as KRS 61.878(1)(l), authorizing nondisclosure of "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly," and KRS 26A.200. The latter statute provides, in part, that all records which are made by or generated for or received by any agency of the Court of Justice, or by any other court, agency, or officer responsible to the Court, are the property of the Court, and are subject to the control of the Supreme Court. Relying on a series of earlier opinions, we concluded that such court records enjoy a special status, and are placed under the exclusive jurisdiction of the court.
We urge KCPC to review KRS 61.880(1) to insure that future responses conform to the procedural requirements of the Open Records Act. Nevertheless, we find that the agency properly denied that portion of Mr. White's request. It is for the courts, and not this office, to determine the propriety of the release of Mr. White's medical and psychological reports to him.
Kentucky Correctional Psychiatric Center is directed to respond to Mr. White's outstanding requests under the terms set forth above. The Center and Mr. White may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.