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 violated the Open Records Act in its disposition of Clyde Hancock's February 4, 2000, request for various records. For the reasons that follow, we find that KSR violated the Open Records Act by failing to comply with the procedural guidelines for agency response set forth at KRS 61.880(1), but that its denial of Mr. Hancock's requests was substantively correct.
On February 4, Mr. Hancock requested copies of:
1. All lawsuits, judgments or disciplinary reports concerning Dr. Tanner, Tony Williams, Dr. O'Neal;
2. The order or other authorization (s) transferring responsibility for urine testing from Luther Luckett Correctional Complex to a private outside laboratory;
3. All policies/procedures relating to the treatment of chronic pain and Hepatitis B and C other than CPP 13.10; and
4. All written materials concerning Dr. O'Neal's decision to deny hepatitis treatment to veterans in V. A. facilities.
Mr. Hancock's February 4 request went unanswered, prompting him to initiate an open records appeal. In his letter of appeal, he complains of KSR's "repeated stalling, " noting that he made his first request in November, 1999. Nevertheless, because Mr. Hancock failed to include the documentation required by KRS 61.880(1), his appeal is perfected only as to the February 4 request. Our analysis is limited to that unanswered request, and the open records issues it raises.
On behalf of KSR, Department of Corrections' staff attorney Tamela Biggs responded to Mr. Hancock's appeal. She explained that Mr. Hancock has initiated legal action against Corrections Department employees, and has attempted to secure documents through both the Open Records Act and discovery "thereby causing some confusion among staff. . . ." With regard to Mr. Hancock's February 4 request, Ms. Biggs observed:
The request was sent to Mr. Allen instead of Deputy Warden Stephens, as required by Corrections Policy and Procedure 6.1. Mr. Allen forwarded the request and the cover memo dated 20 December 1999 to Deputy Warden Stephens for response. Upon receipt of the documents, Deputy Warden Stephens quickly looked the documents over and erroneously surmised that Mr. Allen had taken care of the request and nothing further was required of him; therefore, the inmate is correct when he states that this particular request was not responded to.
Having acknowledged KSR's failure to respond, Ms. Biggs proceeded to deny each of Mr. Hancock's three requests.
In support of these denials, Ms. Biggs maintained:
As to the request for "copies of any/all policies/procedures for treatment of: (A) chronic pain; & (B) Hepatitis B & C; other than CPP 13.10" there are no other policies and procedures regarding treatment of the referenced conditions; therefore, the Department cannot produce what it does not have.
The request for "any/all written material concerning Dr. O'Neal's decision to deny Hepatitis treatment to veterans in V. A. facilities" is denied pursuant to KRS 61.878(1)(a) and 197.025(2). Medical decisions regarding treatment protocol for an inmate is contained in that inmate's medical file. To release any information from this file would result in an unwarranted invasion of that inmate's personal privacy by divulging confidential medical information. Additionally, the medical record does not pertain to Hancock; therefore, his access is denied.
Finally, the request for "any/all lawsuits, judgments or disciplinary reports concerning Dr. Tanner: Tony Williams; Dr. O'Neal; and: (2) copy of order or other authorization (s) which transferred responsibility for urine testing from Luther Luckett Corr. Complex over to a private outside laboratory" is hereby denied pursuant to KRS 197.025(2). Subsection (2) states: "KRS 61.872 notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which pertains to that individual." Under the referenced statute, the Department is not required to comply with a request unless it is for a record that pertains to the individual making said request. As the records being requested do not pertain to Mr. Hancock, Deputy Warden Stephens is not required to comply with the request, since any and all lawsuits or judgments involving Dr. Tanner, Dr. O'Neal or Deputy Warden Williams do not pertain to Mr. Hancock unless he was a named party thereto or certified as part of a class action . Likewise, any documentation regarding the decision to utilize an outside laboratory for drug testing is the result of a "business" decision which does not pertain to the inmate. Disciplinary documents of employees do not pertain to the inmate and have been withheld in the past due to security concerns pursuant to KRS 197.025(1). An inmate may utilize information regarding a disciplinary action to undermine or compromise the authority and effectiveness of the employee.
(Emphasis in original.) Mr. Hancock responds that the staff confusion to which Ms. Biggs refers is "merely another stalling tactic." He notes that his referenced discovery requests in the pending civil action have yielded very little, and "disputes the claim" that there are no corrections policies, other than C.P.P. 13.10, relating to treatment for chronic pain and hepatitis. He asserts that the remaining documents requested "pertain to [him]" and his ongoing legal action.
We limit the scope of our review under KRS 61.880(2)(a) to the open records issues which Mr. Hancock's appeal raises, and, in particular, those issues arising from his February 4 request. We do not address issues relating to his unsuccessful attempts to obtain many of the same documents through discovery, except to note that KSR does not rely on the presence of litigation, and an ongoing discovery dispute, as a basis for denying him access to public records. Instead, KSR advances independently viable statutory bases for its denial of his request. It is the opinion of this office that although KSR's response to Mr. Hancock's February 4 request was procedurally deficient, its denial of that request was substantively correct.
With respect to the procedural requirements of the Open Records Act, as they pertain to correctional facilities, KRS 197.025(7) provides:
upon receipt of a request for any record, the department shall determine with five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the records shall be released.
Ms. Biggs acknowledges KSR's violation of the cited provision, and we will not belabor this issue. The presence of litigation, and simultaneously filed open records and discovery requests, may engender "staff confusion," but neither relieves a correctional facility of its duties under KRS 61.880(1) when read in conjunction with KRS 197.025(7). We urge KSR to review the cited provisions to insure that future responses conform to the Open Records Act.
With respect to the substantive issues in this appeal, we affirm KSR's denial of Mr. Hancock's February 4 request. In general, KSR relies upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). KRS 197.025(2) provides:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which pertains to that individual.
In interpreting this provision, the Attorney General has observed:
KRS 197.025(2) limits an inmate's access to records which do not pertain to him or her.
That these documents may be relevant to [a pending legal action against a correctional facility] does not alter our conclusion. While there may be occasions when we are presented with a closer issue, these records simply do not pertain to [the requester]. To hold otherwise would open the door to other tenuous claims thereby subverting the intent of [KRS 197.025(2)].
98-ORD-150, p. 2, 3. "Whatever hardship [an inmate] believes this statute works upon him, he is nevertheless restrained from inspecting, or receiving copies of, records which do not pertain to him." 99-ORD-161, p. 2. Absent a clear abuse of discretion, we are not inclined to substitute our judgment for that of the commissioner of the Department of Corrections, or his designee, in interpreting and implementing KRS 197.025(2). The decision to deny Mr. Hancock access to many of the records identified in his request turns not on the existence of ongoing litigation, but on the presence of an independent statute, KRS 197.025(2), restricting his access to records that do not pertain to him. We find no error in KSR's denial of his requests.
Ms. Biggs denied Mr. Hancock access to records of disciplinary actions against KSR employees on the basis of KRS 197.025(1). This position finds clear support in 96-ORD-179, a copy of which is attached hereto and incorporated by reference. Finally, Ms. Biggs denied Mr. Hancock's request for corrections policies and procedures "for treatment of . . . chronic pain [and] . . . hepatitis B and C" on the grounds that no policies and procedures exist other than the policy Mr. Hancock cited and expressly excluded from consideration. Numerous decisions of this office support the view that a public agency cannot provide access to nonexistent records. See, for example, 99-ORD-108 (copy enclosed). Here, as in 99-ORD-108, we conclude that although there may be occasions when, under the mandate of KRS 61.8715, the Attorney General requests that the agency substantiate its denial based on the nonexistence of records by demonstrating what efforts were made to locate the records or explaining why no records were generated, we do not believe that this issue warrants additional inquiry in the instant appeal. The Department of Corrections has apparently not reduced to writing any policies relating to chronic pain and hepatitis, nor has Mr. Hancock demonstrated that the Department is legally obligated to do so. KSR "cannot produce that which it does not have." 99-ORD-108, p. 3.
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.