Request By:
Larry Tyus
Jefferson County Corrections Department
400 South Sixth Street
Louisville, KY 40202Suzanne Cordery
Jefferson County Corrections
400 South Sixth Street
Louisville, KY 40202
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 the Jefferson County Department of Corrections, now the Louisville Metro Department of Corrections, violated the Open Records Act in the disposition of Larry Tyus' December 7, 2002 request for records relating to the Department's financial transactions with Correctional Medical Services, Inc. For the reasons that follow, we find that the Department's response was, with the exception of the three irregularities noted below, consistent with the requirements of the Open Records Act. We examine Mr. Tyus' requests and the propriety of the Department's responses to each.
Request one: All checks written on the accounts . . . of Jefferson County Corrections . . . from January 1, 2002 to the present, to Correctional Medical Services in St. Louis, Missouri .
In his December 17, 2002 response, 1 Chief Michael Horton notified Mr. Tyus that the Department "does not possess the requested records" and directed him to Beth Stenberg, chief financial officer for the Jefferson County Finance and Administration Department. This response was consistent with the requirements of KRS 61.872(4) which provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
It is apparent that a public agency cannot provide a requester with records which are not within its custody or control. This office has no reason to question Chief Horton's statement that the requested records are not in the Department's possession. Because his response satisfied the requirements of KRS 61.872(4), we affirm the Department's disposition of this portion of Mr. Tyus' request.
Request two: All other financial records pertaining to the Department and its financial dealings with Correctional Medical Services .
In response to this request, Chief Horton advised Mr. Tyus that the Department "does possess monthly invoices submitted by [Correctional Medical Services] for the period January 2, 2002, to the present." Continuing, he observed:
The Department will need to obtain invoices from archives in order to fill [the] request. This should take about seven working days. The cost of the copies is 10 cents/copy. The Department will notify you once the records are available.
This response was largely consistent with the requirements of KRS 61.872(5), which provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
The Department complied with this provision by notifying Mr. Tyus in writing, and within three business days, that his request would be honored and explaining the circumstances justifying a delay of seven business days in affording him access to the records.
Nevertheless, having received no subsequent communication from the Department, Mr. Tyus was prompted to initiate an open records appeal to the Attorney General on January 10, 2003, well beyond the seven business days to which the Department committed itself. In supplemental correspondence directed to this office, Assistant Jefferson County Attorney Suzanne Cordery explained that the responsive records were mailed to Mr. Tyus on January 17, 2003, and that the additional delay was occasioned by the "difficulty in scheduling a time with archives and locating the correct documents." Although its initial response complied in all particulars with the requirements of KRS 61.872(5), the Department erred in failing to release the requested records seven business days after December 17, 2002, or at a minimum in failing to notify Mr. Tyus in writing that an additional twelve business days would be required to honor his request and briefly explaining why. As this office observed in 01-ORD-38, "KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection. " 01-ORD-38, p. 7 (emphasis in original). "Absent an unforeseen emergency," we further noted, the written commitment to release the records on the earliest date certain, "must not yield to the press of other business." Id. at 8. To the extent that the Department of Corrections failed to release the records to Mr. Tyus within seven business days, or otherwise notify him in writing that an additional twelve days would be required and why, we find that the Department violated KRS 61.872(5).
Request three: All jail logs, records, etc. submitted to the state by the Department for reimbursement of prisoner medical [costs] . . . during the same period .
Chief Horton denied this request "because no such records exist." In assessing the propriety of denials based on the nonexistence of the requested record, this office has observed:
An agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. [Citations omitted.]
02-ORD-144, p. 3. Chief Horton properly notified Mr. Tyus that the Department does not maintain a responsive record or records. Although the records retention schedule for local jails contemplates the existence of medical requests (Series No. L2730), authorizations for release of medical information (Series No. L2731), and a medication log sheet (Series No. L2732), we find nothing in that schedule, or the statutes governing inmate medical care in local jails, that suggests that the Department is required to maintain a log of claims for reimbursement to the state for inmate medical care.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ." KRS 61.8715. Although there may be occasion when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record exists, we do not believe that this appeal warrants additional inquiries. The Department of Corrections has no apparent legal obligation to create a log of claims for reimbursement of the cost of inmate medical care to the state, and its denial of this portion of Mr. Tyus' request, based on the nonexistence of the record, therefore does not raise records management issues.
We do, however, note that with respect to rules for jails relative to medical, dental, and psychological care for prisoners, KRS 441.045(5) and (7) provide as follows:
(5) The cost of providing necessary medical, dental or psychological care, beyond routine care and diagnostic services, for prisoners held pursuant to a contractual agreement with the state shall be paid as provided by contract between the state and county. The costs of necessary medical, dental, or psychological care, beyond routine care and diagnostic services, of prisoners held in the jail for which the county receives a per diem payment shall paid by the state.
(7) When the cost of necessary medical, dental, or psychological care for a prisoner exceeds two thousand dollars ($ 2,000), as calculated by using the maximum allowable costs to similar persons or facilities for the same or similar services under the Kentucky Medical Assistance Program, the state shall reimburse the county for that portion of the costs that exceeds two thousand dollars ($ 2,000). The reimbursement shall be subject to the following terms and conditions:
In addition to jail logs, Mr. Tyus also requested "records" of claims for reimbursement. If the Department availed itself of the right to reimbursement during the period of time identified in Mr. Tyus' request, records reflecting claims made to the state are subject to public inspection to the extent that they do not impinge on the inmate/ patient's privacy rights under KRS 61.878(1)(a). The Department may wish to reevaluate its denial of request three in light of these observations.
Request four: All jail logs, records, etc. . . . showing any medical services that may have been provided by the staff of Correctional Medical Services . . . during the same . . . time period .
In response to this request, Chief Horton advised Mr. Tyus:
[T]he Department does not consider medical records and other such records regarding medical treatment of inmates as public records within the meaning of the Open Records Act. Attached are KRS 61.870(2) and Hardin County v. Valentine, Ky. App., 894 S.W.2d 151 (1995). Alternatively, these records are exempt from public inspection as containing private information, and containing information the disclosure of which is prohibited under state confidentiality laws, such as laws requiring confidentiality of HIV information and information protected by the psychotherapist-patient privilege. Attached are KRS 61.878(1)(a) and (l) and KRE 507.
While we are not prepared to say that the holding in Hardin County , above, (declaring that patient medical records maintained by a county hospital are not "public records" within the meaning of the Open Records Act) extends to local jails or other correctional facilities, we fully agree with the Department that the inmate/ patient's privacy interests in those records generally outweigh the public's interest in disclosure. Accordingly, we affirm the Department's denial of this portion of Mr. Tyus' request on the basis of KRS 61.878(1)(a).
Few records are accorded greater protection than patient medical records. Indeed, in a different factual context the Kentucky Supreme Court has determined that information elicited within the relationship of a health care provider and his or her client is "both personal and private," that disclosure of records containing such information "would constitute a serious invasion of personal privacy, " and that with regard to such records "there is a . . . public interest in personal privacy [that is] strongly substantiated."
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times, Ky., 826 S.W.2d 324, 328 (1992). State and federal legislation support this position. See, e.g., KRS 422.320 (requiring the clerk of the court to permanently dispose of subpoenaed medical records "in a manner that protects the confidentiality of the medical information contained therein"); Health Insurance Portability and Accountability Act of 1996 Public Law 104-191 (establishing standards for privacy of individually identifiable health information and aimed at guaranteeing the privacy and confidentiality of patient medical records). We find no error in the Department's disposition of this portion of Mr. Tyus' request.
Request five: Any other records pertaining to the operation and finances of the jail, [including] income or expense . . . doing business with Correctional Medical Services during the same time period .
In his response to Mr. Tyus, Chief Horton characterized this request as "redundant to requests 1, 2, and 4." From this statement, we assume he meant that the Department maintains no additional financial or operational records relating to Correctional Medical Services. Although the Department's response was minimally sufficient under the Act, we believe that the better response would have been an unequivocal statement that the Department maintains no additional responsive records. As noted above, an agency obviously cannot provide a requester with copies of records that it does not possess, but "a written response that does not clearly so state is deficient." See 02-ORD-144, p. 3 and authorities cited therein. We urge the Department to bear these observations in mind in responding to future open records requests.
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.
Footnotes
Footnotes
1 Chief Horton advised Mr. Tyus that his request, dated December 7, did not reach the Department until December 12, 2002. The Department's response was therefore timely.