Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this consolidated appeal is whether the Eastern Kentucky Correctional Complex (EKCC) complied with KRS 61.870 to KRS 61.884 and KRS 197.025 in responding to Gary Gamble's request to inspect his medical file. Because the transactions giving rise to Mr. Gamble's two separate appeals raise common questions of law, i.e., whether Mr. Gamble was provided with timely access to the requested records, they are consolidated for purposes of administrative adjudication. For the reasons that follow, we find that the EKCC's actions constituted a procedural violation of the Open Records Act and KRS 197.025.
On or about September 3, 2002, Mr. Gamble submitted a request to the EKCC Records Department to inspect:
My whole Medical file to look at and review all contents within said folders, Here at Min out Front.
In his letter of appeal, Mr. Gamble indicates that on or about September 19, 2002, he was advised that his file was ready for inspection and that it was not until September 21, 2002, that he was allowed to review his file.
After receipt of Notification of the appeal and a copy of the letter of appeal, Stephen P. Durham, Office of General Counsel, Department of Corrections, provided this office with a response to the issues raised in the appeal. In his response, Mr. Durham advised:
This letter is in response to the above-referenced Open Records Appeal. The Appellant claims that the Department improperly failed to make the records available for his review within the time required by statute.
Tami Osborne, Nurse Supervisor explains the circumstances that occurred in this case. She asserts that she spoke to the Open Records coordinator for the medical department when she learned that it appeared the inmate's request to view his record had not been timely honored. She learned that a medical department employee received the request from Mr. Gamble to view his record on or about the 4th of September 2002. The employee advises that since she works the midnight shift, she had left the request with dayshift nursing staff so that arrangements could be made for the inmate to be brought over to the medical department during regular business hours.
Ms. Osborne confirmed that the request made it to medical department employees on the dayshift and that the request had been forgotten as the day became very busy.
Linda Carpenter, RN, stated that Mr. Gamble had been brought to medical from the minimum unit on 9/23/02 and was given sufficient time to review the record or have any copies made.
However, ultimately it appears that the institutional staff was not timely in its compliance.
We are asked to determine whether the actions of EKCC relative to Mr. Gamble's request subverted the intent of the Open Records Act short of denial of inspection in the handling of Mr. Gamble's request. For the reasons that follow, we find that, although the agency's actions do not evidence an attempt to subvert the intent of the Act, its actions constituted a procedural violation of the Act and KRS 197.025 by failing to provide Mr. Gamble timely access to his records.
For purposes of calculating the response time for EKCC and the Kentucky Department of Corrections to an open records request, KRS 197.025(7) , as amended by the 1998 General Assembly, extended the standard three day deadline for response to five days. That statute 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.
In the instant appeal, Mr. Gamble's request was made on or about September 3, 2002, and he was advised on September 19, 2002 that the records were available for his inspection and was allowed to inspect the records on either September 21th (as stated by Mr. Gamble in his letter of appeal) or September 23rd (as stated by the Department in its response to the letter of appeal). Under either date, there was a delay of at least over two weeks before Mr. Gamble was permitted to review the requested records.
The EKCC and Department's explanation was that the request was received from Mr. Gamble during the midnight shift, brought to the attention of the day shift, but overlooked due to the press of business the following day. The Department admits in its response that the EKCC staff was not timely in compliance. This is an inadequate basis to justify an over two-week delay, and thus, we conclude that the EKCC violated the Open Records Act and KRS 197.025(7) in failing to make Mr. Gamble's medical file available for his inspection within five business days after receipt of his request.
The facts in this case present more a failure of EKCC to efficiently process an open records request than an attempt to subvert the intent of the Open Records Act. We remind EKCC that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. We urge EKCC to review the cited provisions to insure that future responses timely conform to the Open Records Act and KRS 197.025(7).
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.