Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATORNEY GENERAL
Open Records Decision
This is an appeal from the actions of the Northpoint Training Center relative to two open records requests submitted by William F. Simpson, an inmate at the Center. On August 19, 1997, Mr. Simpson submitted a request for copies of certain of his medical records. On August 20, 1997, Lt. Kathy Prall, Open Records Coordinator, responding on behalf of the Center to Mr. Simpson's request, stated:
I am in receipt of the Request for Inspection of Records, dated August 19, 1997, in which you requested copies of (1) an x-ray report from Haggin on January 16, 1997 and (2) reports on ortho surgery at U of L, 1990-1996, elbow.
The Department of Corrections is not considered a health care provider. Medical records from an outside health care provider shall not be released by the Department of Corrections. Pursuant to KRS 61.872(4), the individual requesting release of such documents shall be given the name and address of any and all such health care provider (s).
You may request the records from the Haggin Hospital, 464 Linden Avenue, Harrodsburg, Kentucky 40330 and University of Louisville, 529 South Jackson, Louisville, Kentucky 40202.
On August 21, 1997, after receipt of Lt. Prall's response, Mr. Simpson submitted a second request for the same records.
In his letter of appeal, dated August 31, 1997, Mr. Simpson appeals the denial of his first request and the failure of the Center to respond to his second request.
On September 9, 1997, we sent the Center a "Notification to Agency of Receipt of Open Records Appeal" and a copy of Mr. Simpson's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, provided this office with a response to the issues raised in the letter of appeal.
In addition to this response, Ms. Biggs attached a copy of a September 11, 1997 supplemental response to this office from Lt. Prall explaining the delay in responding to Mr. Simpson's second request and noting that the Medical Department at Northpoint Training Center was not the custodian of the requested records and that he was not denied the records.
In her response to the letter of appeal, Ms. Biggs stated:
The Department of Corrections (the "Department") is not a health care provider in either the traditional or legal sense. Inmates are provided with necessary medical care; however, if an inmate's condition is such that diagnostic tests or complex procedures are required, he is sent to an outside health care provider. The Department is provided copies of test results, examination and treatment notes, and all other records in order to provide a continuity of care for the inmate. The health care provider retains legal ownership of the physical file, while the patient is the "owner" of the intellectual property therein. Pursuant to 902 KAR 20:016E(11) Medical and other patient records, (b)(4)(c) states that these records "are the property of the hospital and shall not be taken from the facility except by court order. This does not preclude the routing of the patient's records, or portion thereof, including x-ray film, to physicians or dentists for consultation." (Emphasis added.) Subsection (c)(2) states that patient information shall not be released without the authorization of the patient. The Department has interpreted this to preclude the release of records provided by an outside health care provider, i.e., the hospital, to anyone, including the patient; therefore, the inmate is always provided the name and address of the official custodian (the health care provider) when an open records request is made for records which the Department has obtained solely for continuity of care purposes. Lt. Prall responded correctly by citing KRS 61.872(4) and providing the inmate with the address of the appropriate health care providers.
As Lt. Prall states in her supplemental response of 11 September, the reason for the delay in response was the inmate's labeling the correspondence as "personal." While Lt. Prall was on leave, other staff had been designated to respond to all open records requests in a timely manner. If the inmate had sent the request without this designation, it would have been responded to within the three day time limit by the assigned staff.
Finally, I would like to take this opportunity to express the Department's opinion that medical records are not "open records" under KRS Chapter 61. The Department does not release copies of an inmate's medical record to a third party without first obtaining a written release. If these were truly "open records" held by a state agency, such a release would not be required; however, due to the sensitive and confidential nature of the inmate's medical record, such is never disclosed to another individual without prior approval by the inmate.
We are asked to determine whether the responses to Mr. Simpson's requests were consistent with provisions of the Open Records Act. For the reasons which follow, we conclude that the Center's actions were inconsistent with the Act.
The requested records at issue here are not medical records in possession of the hospital or the health care provider, to which 902 KAR 20.016E applies, but documents from that file which are in the possession of the Center.
The Center is provided copies of test results, examination and treatment notes, and all other records from outside health care providers in order to provide a continuity of care for the inmate. The medical records of Mr. Simpson provided by the hospital are possessed and used by the Center for this "continuity of care" purpose. This use clearly relates to one of the Center's functions and statutorily mandated duties of providing necessary medical care to and preserving the health of inmates. KRS 197.020.
Thus, we conclude these records maintained by the Center are "public records" in the sense that they are used, in the possession of, or retained by a governmental or public agency, as defined in KRS 61.870(2). See, for example, 96-ORD-267, where we held that an evaluation report prepared by an outside rehabilitation center which was "used, in the possession of or retained" by the Transportation Cabinet to determine the fitness of a driver to continue driving was a "public record" for the purposes of the Open Records Act.
Although the medical records of Mr. Simpson may be excluded from the public generally, pursuant to KRS 61.878(1)(a), as records which would constitute a clearly unwarranted invasion of personal privacy, the records are not exempt here, as the request for these records is not by a third party, but by Mr. Simpson himself. Thus, concerns relative to the unauthorized release of private or confidential information from a patient's medical records are not involved here.
It is unclear which, if any, of Mr. Simpson's medical records are physically in the possession of the Northpoint Training Center. If the Center does not have any of the requested medical records, then its reliance upon KRS 61.872(4) is correct and requirements of the Open Records Act are satisfied by providing the inmate with the name and address of the appropriate health care provider which has the requested records.
However, if all or any portion of Mr. Simpson's medical records are in the Center's possession, it is obligated to disclose them to him, subject to KRS 197.025(1).
KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility under the jurisdiction of the department, shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
Accordingly, the Center should make the requested records from Mr. Simpson's medical file, in its possession, available to him, unless it determines that providing him with the requested records would constitute a threat to security under the guidelines of KRS 197.025(1).
The Center's failure to respond to Mr. Simpson's second request within three business days, as required by KRS 61.880(1), was a procedural violation of the Act's requirement for a timely response to an open records request. However, this procedural violation is mitigated by the Center's explanation that the second request was addressed to Lt. Prall, was submitted while she was on leave and marked as "personal." The request was not opened until she returned. Lt. Prall explained that had it not carried this designation, it would have been processed within the three day period.
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.