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00-ORD-166

 

August 31, 2000

 

 

In re: Jim Lang/Blackburn Correctional Complex

 

Open Records Decision

 

        The question presented in this appeal is whether the Blackburn Correctional Complex (BCC) violated the Open Records Act in denying Jim Langs request for:

 

Copy of the criteria utilized to determine who is eligible for treatment for Hepatitus C and policy or criteria on how the delivery of treatment is completed and any and all criteria on what excludes a person from treatment. A copy of the time frames in which treatment must begin or end.

 

        Responding on behalf of BCC, Carla M. Anderson, Medical Secretary, denied Mr. Langs request, stating that the information could not be released from that office. She advised that the request should be submitted to Dr. Richard Kimbler, Medical Director, Department of Corrections, P.O. Box 2400, Frankfort, Kentucky, 40602.

 

        In his letter of appeal, Mr. Lang argues that the BCC Medical Office was in possession of the manual containing the policies he requested and thus was the custodian of the requested records and that the denial of the request was a part of a continuing pattern of conduct by the Department of Corrections to illegally thwart access to public records.

 

        After receipt of Notification to Agency of Receipt of Open Records Appeal, Tamela Biggs, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in Mr. Langs appeal. Elaborating on BCCs original response, Ms. Biggs stated that Ms. Anderson had been instructed by Gwen Holloman, Nursing Supervisor, BCC, how to respond to the request and she advised her, that since the request involved a medical manual that was compiled by Dr. Kimbler, she should refer Mr. Lang to Dr. Kimblers office about release of the manual.

 

        Addressing the issues raised by Mr. Langs letter of appeal, Ms. Biggs explained:

 

        Custodian is partially defined in KRS 61.870(6) as any authorized person having personal custody and control of public records. Ms. Holloman is a registered nurse and is the nursing supervisor for Blackburn Correctional Complex. Ms. Holloman fits the somewhat broad definition of custodian and could have responded directly to the request. Due to the fact that Mr. Lang was requesting a document regarding medical procedures and protocol, Ms. Holloman was not comfortable releasing same to him. She referred Mr. Lang to Dr. Kimbler as the originator and official custodian of the record. Ms. Holloman was not attempting to illegally thwart access to public records by referring Mr. Lang to Dr. Kimbler, but was erring on the side of caution due to the nature of the requested records.

 

        Expanding on BCCs original response, the Department denied Mr. Langs request under the additional authority of KRS 197.025(2). Ms. Biggs stated:

 

KRS 197.025(2) states, in part: the department shall not be required to comply with a request for any record . . . unless the request is for a record which pertains to that individual. The manual forwarded to the institutional medical departments contains medical procedures and protocol to be followed by health care professionals in the course of rendering treatment. The fact that medical staff may occasionally treat Mr. Lang does not mean every medical protocol, treatise or treatment procedure in the medical departments possession is a document he may access.

 

For the reasons that follow, we conclude that the Department of Corrections properly relied on KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Mr. Langs request for certain policies and criteria from an institutional medical manual. 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 inmates 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.

 

As the Department notes, the medical manual, applicable to every inmate housed in the institution and which was forwarded to institutional medical departments, contains medical procedures and protocols, to be followed by health care professionals in the course of providing treatment. Even though Mr. Lang may receive treatment in accordance with the procedures and protocols set forth in the manual, it does not pertain specifically to him. 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). We affirm the Departments denial of Mr. Langs request.

 

However, we do note that the agencys original response was procedurally deficient in failing to set forth a statutory basis for either denying the request or for advising him that he should submit his request to Dr. Kimbler.

KRS 61.880(1) mandates that if inspection of the requested records is denied, the agencys official custodian of records must cite the specific exception authorizing nondisclosure of the records, and briefly explain how the exception applies to the record withheld. The original response failed to cite the exception upon which the agency relied in denying Mr. Langs original request, and explain its application to the records withheld, thus, the original response was procedurally deficient. If Dr. Kimbler was the official custodian of the manual, the request should have been forwarded to him for timely response, as required by KRS 197.025(7), rather than requiring Mr. Lang to resubmit another request to Dr. Kimbler. 99-ORD-147

 

        Ms. Biggs explained in her response that staff had been advised that if they were unsure as to how to respond to an open records request, they should contact the Departments Office of General Counsel. We see nothing wrong with the Departments policy of processing open records requests through its legal department. In our view, this policy insures uniformity and adherence to the law. 93-ORD-134. However, care must be taken that such a policy does not interfere with the timely processing of an open records request.

 

        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.

 

Albert B. Chandler III

Attorney General

 

 

James M. Ringo

Assistant Attorney General

#466

 

 

 

Distributed to:

 

Jim Lang #89449

Blackburn Correctional Complex

3111 Spurr Road

Lexington KY 40511

 

Susie Wilhoit-Oliver

Offender Records Officer

Blackburn Correctional Complex

3111 Spurr Road

Lexington KY 40511

 

Tamela Biggs

Department of Corrections

Office of General Counsel

2439 Old Lawrenceburg Road

Frankfort KY 40602-2400

Disclaimer:
The Sunshine Law Library is not exhaustive and may contain errors from source documents or the import process. Nothing on this website should be taken as legal advice. It is always best to consult with primary sources and appropriate counsel before taking any action.
Requested By:
Jim Lang
Agency:
Blackburn Correctional Complex
Forward Citations:
Neighbors

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