Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the actions of the Kentucky State Reformatory (KSR) in response to Carl Breckenridge's open records request for certain of his medical records. Specifically, he requested:
copies of all prescribed medicine, blood work and urinalysis and x-ray reports from K.S.R. and L.L.C.C. All chart of antibiotics and why taken, all doctors diagnosis for U/A from K.S.R. and L.L.C.C. Copies of all outside trips to doctors: meaning documents, prescribed treatment, and medication upon entering institution to prior date of request. Copies of all request forms to see the doctor, or for follow-ups, in-out log on who released to and what date, copies of all records from L.L.C.C. and K.S.R log-ins and out to whom records was released to.
In his letter of appeal, Mr. Breckenridge indicated that KSR provided and charged him for 239 copies of records and charged him $ 25.33, which included sales tax. He alleged that he only received 231 copies, out of which 151 of the copies were either duplicates or records he did not request, such as physical therapy records and records he had provided to the medical department upon arriving to KSR. He stated that he filed an inmate grievance over the matter, seeking a reimbursement of $ 16.94, which included the 6% sales tax charged, for the copies of records he did not request or want.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the KSR and the Department of Corrections and enclosed a copy of Mr. Breckenridge's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Vanessa Morgan, Custodian of Records, KSR, provided this office with a response to the issues raised in the appeal. With her response, Ms. Morgan enclosed the KSR's response to Mr. Breckenridge's complaint to the institution about the number of copies received and his request for reimbursement. The response, from Elizabeth Neichter, Director, Medical Records, KSR, stated:
The copies that were made for you were based upon your request. Your authorization directed us to release to you: all prescriptions, all laboratory work and radiology reports, clinic and consultation records. The department cannot edit clinic or consultation documents, so individuals who wish specific documents must do so by date. If the request is not date specific, all clinic notes are then sent. The alternative is to view your records before requesting photocopies and to indicate the exact pages you wish copied.
In addition, your request asked for documents from outside sources. The department has no mechanism to identify which records are supplied by an inmate for inclusion in their chart versus materials requested by health care professionals. To exclude the photocopying of these records, you needed to indicate the specific reports that you were seeking, rather than using the word ALL . (Emphasis in original.)
The quality of the photocopied documents is based upon the quality of the original documents.
I reviewed the original record and did not find duplication of documents.
Sales tax is charged to everyone requesting records. This is done at the direction of the Department of Corrections and the Attorney General's office.
We are willing to accommodate you in the following manner:
A review of the records that were sent to you showed that you received physical therapy records (36 pages) and free world records (64 pages). We will refund monies for the physical therapy records as in re-reading your initial request we believe that it was not your intention to receive these.
Because we believe there was a miscommunication between your written request and the precise documents you were seeking, we will also refund your money for the free world records. Although your authorization clearly requested these documents.
A reimbursement form has been sent to the Chief Clerk's office in the amount of $ 10.06 - ten dollars for the copies and six cents for the sales tax. A copy of this is attached.
We are asked to determine whether the actions of the KSR were in accordance with the Open Records Act. For the reasons which follow, we conclude that the agency's actions were consistent in part and inconsistent in part with the Act.
This office has previously recognized that as a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents he wishes to review. OAG 89-81; OAG 91-58; 93-ORD-116. In the instant case, Mr. Breckenridge identified specific classes of his medical records of which he wanted copies. He complains that he received more records than he requested, some duplications, and some that he did not want. However, as explained by Ms. Neichter in her response, Mr. Breckenridge requested copies for all records in each class, such as all prescriptions, all laboratory work and radiology reports, clinic and consultation records. The KSR, in compliance with the request, provided him, with certain exceptions discussed below, the records he requested. As Ms. Neichter advised Mr. Breckenridge, an alternative to such a blanket request, would be to review the records before requesting copies and indicate the exact records he wanted. Accordingly, we conclude that the KSR's response was consistent with the Open Records Act.
Mr. Breckenridge complains in his letter of appeal that he did not receive all the records he paid for, received more records than he requested, some duplications, and some that he did not want. The KSR has responded that it has provided records consistent with his request, that it found no duplications, and has attempted to cooperate with him by refunding him costs paid for physical therapy records and certain free world records. Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records Mr. Smith asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
The parties should continue to cooperate to resolve any differences or misunderstandings related to records sought by Mr. Breckenridge.
However, we conclude that the KSR improperly charged Mr. Breckenridge sales tax for copies he received. KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records . . . which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." This provision has been interpreted to mean that the fee charged for copies should be based on the agency's actual expense, not including staff costs. The fee is thus limited to the proportionate cost of maintaining copying equipment by purchase or rental, and the supplies involved. In
Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that ten cents per page was a reasonable copying charge under the Open Records Act.
Providing copies of nonexempt public records is not a "sale" of the records. It is a compliance with the legislative mandate to make public records open and available for inspection and at a reasonable cost. KRS 61.872(3); KRS 61.874(3). There is no provision in the Open Records Act that authorizes an agency to charge a sales tax for copies of public records provided pursuant to an open records request. The KSR must recalculate its copying fee to conform to the requirements of KRS 61.874(3), without charging a sales tax, and charge Mr. Breckenridge accordingly.
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.