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 Lang’s 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. Lang’s 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. Lang’s appeal. Elaborating on BCC’s 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. Kimbler’s office about release of the manual.
Addressing the issues raised by Mr. Lang’s 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 BCC’s original response, the Department denied Mr. Lang’s 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 department’s 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. Lang’s 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 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.
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 Department’s denial of Mr. Lang’s request.
However, we do note that the agency’s 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 agency’s 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. Lang’s 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 Department’s Office of General Counsel. We see nothing wrong with the Department’s 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