Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Blackburn Correctional Complex (BCC) violated the Open Records Act in denying Freeland Riley's August 13, 2003, request for "a copy of the memo that came out on Hepatitis (A) & (B) vaccination" and in its response to previous requests for a copy of notes dictated by Dr. Jennifer Joyce, UK Family Practice, on 5/22/03. For the reasons that follow, we affirm BCC's denial of Mr. Riley's request for the memo and its response regarding the requested dictated notes.
On August 15, 2003, Virginia C. Benning, BCC records custodian, responded to Mr. Riley's request for the memo, advising:
The document you requested does not contain a specific reference to you. Pursuant to KRS 197.02(2) [sic] and KRS 61.878(1)(l), this document will not be provided to you. If you have questions regarding vaccinations, please make an appointment with the Medical Dept.
In his letter of appeal, dated August 25, 2003, Mr. Riley indicated that he had been trying since June 17, 2003 to get the dictated notes, that were the subject matter of his appeal to the Attorney General in 03-ORD-168, and as of the date of his letter, he had not received the dictated notes.
After receipt of notification of the appeal and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised in relevant part:
On behalf of BCC, the Department submits that Ms. Binning's response complied with provisions of the Kentucky Open Records Act. KRS 61.878(1)(l) exempts from disclosure public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. KRS 197.025(2) states that ". . . the Department shall not be required to comply with a request for any records from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the Department, unless that request is for a record which contains a specific reference to that individual." An institutional memorandum would not contain a specific reference to the inmate, Mr. Freeland Riley. Therefore, the BCC medical records custodian has no obligation to provide Mr. Riley with a copy of this memorandum. Furthermore, KRS 61.878(1)(j) exempts from disclosure " . . . preliminary memoranda in which opinions are expressed or policies formulated or recommended." While not cited in Ms. Binning's response to Mr. Riley, this provision also applies to exempt an internal memorandum issued with regard to policies. The Department of Corrections has a published policy regarding Serious Infectious Disease, 501 KAR 6.020, Corrections Policy and Procedure (CPP) 13.10, to which Mr. Riley should have access at BCC without resorting to open records law.
Regarding Mr. Riley's second allegation - that BCC has failed to provide him a copy of dictated notes by Dr. Jennifer Joyce, UK Family Practice - the Department respectfully submits that BCC has not violated the Kentucky Open Records Act in its response to Mr. Riley's repeated requests for this memo. Ms. Binning has informed Mr. Riley, on several occasions, that the dictated notes have not been received by BCC and therefore cannot be provided by copy to Mr. Riley. It is beyond cavil that a public agency cannot give persons access to records that do not exists or that the agency does not possess.
We first address BCC's argument that the requested memorandum is not available to Mr. Riley under authority of KRS 197.025(2). That statute 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 contains a specific reference to that individual.
The language of KRS 197.025(2) requires that the records requested by the inmate "contain a specific reference to the [requesting inmate] ." (Emphasis added.) We find that under no construction of KRS 197.025(2) can it be said that the requested memorandum "contain[s] a specific reference to [Mr. Riley]." Accordingly, we find that BCC properly denied his request for a copy of the "memo that came out on Hepatitis (A) & (B) vaccination, " notwithstanding the fact that he has been diagnosed with this illness, because that memorandum does not specifically reference him.
Having determined that KRS 197.025(2) authorized nondisclosure of the record requested by Mr. Riley, we do not address the alternative argument advanced by BCC.
We next address Mr. Riley's second complaint that the BCC has failed to provide him a copy of "notes dictated by Dr. Jennifer Joyce, UK Family Practice, on 5/22/03."
In her response to the letter of appeal, Ms. Dennis advised that Mr. Riley had been informed that the dictated notes have not yet been received by BCC and therefore it could not provide him with a copy of the notes. This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, the BCC's actions, in advising Mr. Riley that the records he was seeking had not yet been received by the institution, were proper and consistent with the requirements of the Open Records Act and did not constitute a violation of the Act.
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.
Freeland Riley, # 117555Blackburn Correctional ComplexC-1, E-Bay, Bed-833111 Spurr RoadLexington, KY 40511
Virginia C. BinningCustodian of Medical RecordsBlackburn Correctional Complex3111 Spurr RoadLexington, KY 40511
Emily DennisStaff AttorneyKY Department of CorrectionsP.O. Box 2400Frankfort, KY 40602-2400