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 Kentucky State Reformatory complied with KRS 61.870 to KRS 61.884, and KRS 197.025, as amended, in responding to Harry L. Davis's July 30, 1998, request for his medical records. For the reasons that follow, we find that KSR's actions were consistent with the cited provisions.
In his request, Mr. Davis asked to inspect:
ANY and ALL medical records; consultative reports; diagnostic results; professional opinions; etc. . . . related to my visits with Doctor Holt, and any follow-up visits; orders of Doctor Holt, including, but not limited to all of the above-stated documents, and ANY/ALL related documents.
Mr. Davis also asked that KSR:
comply with ALL provisions of: KRS 61.872(5); and KRS 61.880(1), regarding the (3) day response and if the requested records are unavailable, notification of exactly when and where they are to be made available for inspection by the requestor.
Having received no response to his request, on August 8, 1998, Mr. Davis initiated this appeal through fellow inmate and self-styled paralegal, Raymond D. Watson.
On behalf of Mr. Davis, Mr. Watson complained that KSR's records access policies, along with the records access policies of other state correctional facilities, are aimed at "stall[ing]" inmates in their efforts to obtain records to which they re clearly entitled. He stated that Mr. Davis "turned over to his caseworker, (per Corrections' and KSR policies), an open records request," but, five working days later, had "received NO response whatsoever, from anyone."
In fact, on August 4, 1998, Vanessa Morgan, medical records coordinator at KSR, had issued a response to Mr. Davis in which she advised him that he could inspect his medical records on August 12, 1998, at 12:30 p.m. in the treatment room of the administration building. According to Tamela Biggs, staff attorney for the Department of Corrections, this delay in furnishing Mr. Davis with access to his medical records was prompted by exigencies of time and space. In a follow up letter to this office, Ms. Biggs noted that, as amended, KRS 197.025(7) now provides:
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released.
With respect to Ms. Morgan's response to Mr. Davis's request, Ms. Biggs explained:
Rather than deny the inmate's request as being vague and overly broad, she tries to work with the inmates to determine what documents they are seeking in the files. In keeping with this practice, Ms. Morgan notified Mr. Davis on 4 August 1998 that he could come at 12:30 on Wednesday, 12 August 1998 to review his chart and determine which documents he wished to have copied. Ms. Morgan schedules all file reviews for Wednesday afternoon, as this is the only day that a treatment room is available. It is the position of the Department that the Open Records Law was not violated. Ms. Morgan responded to the request within the five-day time limit, scheduling an appointment for the inmate to come and view his chart. While she could have denied the request as being vague and overly broad, she chose to try to assist the inmate in obtaining only the documents he truly needs or wants. Due to the nature of the facility and lack of available time and space, the 12<th> was the first time available to meet with the inmate to review his file.
Ms. Biggs did not state that copies of the requested records were furnished to Mr. Davis, and this issue remains in dispute, Mr. Watson claiming that to date "Mr. Davis has not received one solitary piece of paper from his medical file."
It is the opinion of this office that KSR fully complied with its statutory deadline for responding to Mr. Davis's request, and that the facility afforded him timely access to the records identified in his request.
KRS 197.025 was substantially amended in the 1998 legislative session. Among the changes wrought by the General Assembly was the inclusion of a provision extending the deadline for the Department of Corrections' response to an open records request from the residual three day statute, codified at KRS 61.880(1), to a specific five day statute, codified at KRS 197.025(7). KRS 61.880(1) is a general statute that only applies where there is no other applicable statutory deadline for agency response. KRS 197.025(7) is a specific statute pertaining to the deadline for the Department of Corrections' response to an open records request. The specific statute governs over the general statute. City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969).
The closest analogy which we can draw is to the reasonable fee provision found at KRS 61.874(3) and the county clerk's fee schedule found at KRS 61.012. This office has consistently recognized that where there is a conflict between these two statutes, the specific county clerk's fee schedule prevails. See, for example, OAG 80-209; OAG 84-91; OAG 87-80' OAG 89-9; OAG 92-79; 96-ORD-3. In the appeal before us, the Department's response time is governed by the specific statute found at KRS 197.025(7). Mr. Davis's request was submitted on July 30. Ms. Morgan responded on August 4, well within the five business days permitted by KRS 197.025(7). We find that KSR responded in a timely fashion to Mr. Davis's request.
Whether KSR afforded Mr. Davis timely access to his records is a closer question. In 96-ORD-7, this office commented:
An inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. Although, as we have recently observed, "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof," an inmate's movements within the facility are presumably restricted, and the manner in which he conducts his financial business dictated by the facility. 94-ORD-90, p. 2; see also, OAGs 79-546; 79-582; 80-641; 82-394; 89-86; 91-129; 92-ORD-1136. Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. This does not, however, authorize a correctional facility to adopt and implement records policies which unreasonably delay access.
Mr. Davis was notified on August 4 that the earliest date on which he could inspect his medical records was August 12, nine business days after the date of his request. Although Ms. Biggs has explained to the Attorney General that this delay was necessitated by "the nature of the facility and lack of available time and space, " this explanation should have been directed to Mr. Davis pursuant to KRS 61.872(5). Since, however, Mr. Davis asserted his right to inspect the records [rather than receive copies of those records], and since the only suitable facilities for inspection were unavailable until the following Wednesday, and since Mr. Davis, an inmate confined in a correctional facility "must accept the necessary consequences of his confinement, " we cannot conclude that this four day delay deprived him of timely access to the records. Although we find no error in KSR's actions relative to Mr. Davis's request, we urge the facility to attempt to locate alternative facilities for inmate inspection of public records in order to expedite records access.
The fact that Mr. Davis has not yet received the records he requested does not, in this case, alter our conclusion. The fault lies, in large part, with Mr. Davis, who missed a number of scheduled appointments with Ms. Morgan, and whose inmate account does not contain sufficient funds to pay for copies. As this office noted in 96-ORD-7:
The [Open Records] Act is a doubled-edged sword. Although it guarantees the public the right to inspect nonexempt records, it mandates that as a precondition to inspection a requester must comply with certain procedural requirements, including submission of a written request and prepayment for copies. . . . We believe that the Act was never intended to frustrate access to records, and that an agency is statutorily obligated to provide a requester with timely access at a reasonable fee. Nevertheless, we also believe that an agency is justified in enforcing the procedural requirements of the Act.
KSR is not obligated to devise creative financing plans to enable Mr. Davis to immediately obtain copies of his records. It is enough that the facility responded to his request within five business days, and that it afforded him timely access to his records by arranging for inspection of these records on the first available date.
Mr. Watson also complains, on Mr. Davis's behalf, that certain records are missing from his medical file. Again, we remind the parties of the Attorney General's limited role in resolving an open records dispute.
In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, "we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." 93-ORD-15, p. 6.
We urge the parties to bear this observation in mind in future open records exchanges.
If sufficient evidence exists that the [agency] willfully concealed a public record, . . . that evidence should be taken to the appropriate prosecutorial authorities. KRS 61.991(2)(a) establishes penalties for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. The Attorney General is not, however, authorized to render a decision on this question[.]
96-ORD-185, p. 4, 5. Simply stated, this office is not empowered to resolve a "swearing contest" between the parties.
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.