Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex violated the Open Records Act in responding to inmate James M. Perry's January 12, 1998, request for specifically described medical records. On January 13, 1998, interim medical administrator Michael Sparks denied Mr. Perry's request, advising him that "all requests for records must be sent to the EKCC Records Dept." Mr. Perry challenges this response to his request, arguing that he has obtained records directly from the medical department in the past, and that no one other than the medical department and he should have access to these records. We find no error in Mr. Spark's handling of Mr. Perry's request, and affirm EKCC's denial.
In a supplemental response, Department of Corrections' staff attorney Tamela Biggs explained that Mr. Sparks's actions were entirely consistent with Corrections Policies and Procedures. She stated that Mr. Sparks, who has served as interim medical administrator for only two months, relied on C.P.P. 6 when he returned the request to Mr. Perry for proper routing through records coordinator Michelle Nickell. That policy requires that all inmate requests be presented to the facility's records coordinator. Ms. Biggs explained the rationale underlying this policy:
The position of Open Records Coordinator was created to ensure that all inmate requests were handled in a uniform and timely manner. In the past, inmates sent a request to a specific department or hand delivered same to an employee. This system proved problematic, as a request may not be noticed and responded to in a timely manner or a request given to an officer walking the yard may be misdirected or misplaced and never reach its intended destination. The position of Open Records Coordinator was meant to provide continuity and a "check" to ensure that a request was forwarded to the appropriate custodian and that a response was given within the requisite statutory period. It was not meant to delay or increase response time.
She noted that although previous medical administrators may have furnished copies of records to inmates without routing them through Ms. Nickell, Mr. Sparks complied with the procedures set forth in C.P.P. 6.1 in directing Mr. Perry to the records coordinator.
Although the general guidelines governing agency response to an open records request are found at KRS 61.880(1), this office has recognized that "an inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. " 95-ORD-105, p. 5. Thus, while "all persons have the same standing to inspect and receive copies of public records, . . . an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. " Id. Nevertheless, a correctional facility may not "adopt and implement records policies which unreasonably delay [or restrict] access." Id. We believe that Corrections policy 6.1 is consistent with the procedural requirements of the Act and does not unreasonably delay or restrict inmate access to public records.
KRS 61.870(5) defines the term "official custodian" as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control." KRS 61.872(2) states that as a precondition of processing an open records request, "the official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." KRS 61.876(1)(b) requires the public agency to post rules and regulations which conform to the Open Records Act and are aimed at providing full access to public records, and which identify the official custodian of the agency's records. Finally, KRS 61.880(1) provides that the agency's response to an open records request "shall be issued by the official custodian or under his authority, and it shall constitute final agency action." When read together, these provisions mandate the appointment of an official custodian of records whose function it is to process all open records requests which the agency receives. As we noted in 93-ORD-134, "we see nothing wrong with the . . . policy of processing open records requests through . . . [one office]. In our view, this policy insures uniformity and adherence to the law." 93-ORD-134, p. 10, 11. However, in adopting this policy, "it is incumbent on EKCC to streamline its policies by educating its employees . . . on the importance of providing a timely response, as well as timely access to records." 95-ORD-105, p. 5. Assuming that all departments at EKCC apply this policy in a consistent manner with the goal of insuring a timely response and timely access, and that the inmate population had been advised of it, we believe that EKCC may properly require all records requests to be routed through the records coordinator's office.
With respect to Mr. Perry's concerns about the confidentiality of these records, we note that this is not an issue capable of resolution under the Open Records Act. We further note, however, that Ms. Biggs indicates that although his request must be sent to the open records coordinator, the records will not be released to Ms. Nickell or any other employee of the records department, but will instead be sent directly to Mr. Perry from the medical department through institutional mail. We trust that these safeguards are always observed when medical records are requested.
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.