Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Kentucky State Penitentiary violated the Open Records Act in denying the request of Dannie Heras, an inmate at KSP, "to visually inspect any & all records within [his] administrative file which reflect restitution obligations." Because the medical records in question do not contain a "specific reference" to Mr. Heras, we conclude that KSP properly invoked KRS 197.025(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), 1 in denying his request as to those records.
As documented on the standard request form submitted by Mr. Heras, KSP Records Custodian Michelle Herring made the following disposition of his request:
Records have been copied for the inmate [']s review. 4/12/04. The requested documents were given to CTO Gary Blackburn on 4-14-04 for Inmate Heras' review. Medical records could not be sent. See attached memo. Inmate Heras reviewed the documentation on 4-14-04 in the presence of CTO Steve Herring.
In the referenced memorandum dated April 12, 2004, Ms. Herring advised Mr. Heras as follows:
Your Open Records Request dated April 07, 2004 was received on April 08, 2004.
Your request for particular documents from the institutional record of Scott Etheridge is denied.
In accordance with KRS 197.025(2) the department shall not be required to comply with a request for any record from any inmate unless the request is for a record which contains a specific reference to that individual. Your request is therefore denied.
Simply stated, you cannot get a copy of someone else's record.
Also attached to Ms. Herring's response is a copy of a separate memorandum dated April 14, 2004, which is entitled "Document/Record Review," and provides:
I, Danny Heras, made a request to review any and all records that reflect my financial restitution obligations.
I understand that I cannot view the medical records for which I owe restitution.
Case manager Gary Blackburn provided the records for my inspection on April 14, 2004.
I understand that if I want a copy of any or all of the documents reviewed I must file another Open Records Request identifying the document(s). This request must be sent to Mr. Tom Simpson, Open Records Coordinator, along with a signed CPO to cover the $ 0.10 per page fee.
On appeal, Mr. Heras argues that KSP has "arbitrarily denied[] any and all access to records from which restitution (seizure of prisoners['] funds) is supposedly imposed or authorized by the prison adjustment committee." According to Mr. Heras, "[a]t no time [has] the adjustment committee which inflicted restitution upon [him] provided any form of documentation reflecting any medical bills for which [he] may be liable." In his view, the requested records should "be readily available under KRS Chapter 61 as [he is] compelled to pay financial restitution as the end result of these alleged documents."
In supplemental correspondence received by this office following commencement of the instant appeal, Emily Dennis, Staff Attorney for the Justice and Public Safety Cabinet, elaborates on KSP's position. As observed by Ms. Dennis:
Ms. Herring's reply to Mr. Heras' request complied with the Kentucky Open Records Act. Mr. Heras was ordered to pay restitution for medical bills incurred by EKCC as a result of disciplinary action taken against Mr. Heras for "physical action resulting in injury to another inmate, " Scott Ethridge. Mr. Ethridge required emergency medical attention as a result of the altercation on 5/4/2001 (See attached Exhibits 1 and 2). The medical bills from Morgan County ARH Hospital-in amounts $ 1795.36, $ 235.00, and $ 541.00-for services rendered to Mr. Ethridge on 5/4/2001, fail to include a specific reference to Mr. Heras, and are therefore exempt from disclosure to Mr. Heras pursuant to KRS 61.878(1)(l) and KRS 197.025(2). Furthermore, Mr. Ethridge's medical bills contain personal information the public disclosure of which may constitute an unwarranted invasion of personal privacy under KRS 61.878(1)(a). Finally, the disclosure of an individual's medical records, absent authorization from the individual, is prohibited by federal law under KRS 61.878(1)(k) and the Health Information Portability and Accountability Act (HIPAA), 45 C.F.R. Part 164.
With the exception of the specified medical records, KSP has already permitted Mr. Heras to inspect "any & all" records that are responsive to his request as evidenced by the record on appeal. Because the actions of KSP relative to those records were otherwise consistent with the Open Records Act as implicitly conceded by Mr. Heras, the sole issue presented is whether Mr. Heras is entitled to inspect the medical records of another inmate, namely, Scott Ethridge. For the reasons that follow, we conclude that KRS 197.025(2) operates to preclude Mr. Heras from gaining access to the requested medical records and, therefore, KSP did not violate the Open Records Act by denying Mr. Heras' request on that basis.
KRS 197.025(2) currently 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." (Emphasis added).
As amended in 1998, this provision authorized correctional facilities to withhold a record from an inmate unless the record "pertain[ed] to that individual." 98-ORD-150, p. 3. In 2002, however, the General Assembly further narrowed the scope of public records available to inmates by stipulating that correctional facilities and jails must disclose only those records containing "a specific reference" to the requesting inmate as correctly argued by Ms. Dennis. 04-ORD-015, p. 3; 03-ORD-073, p. 3. "The net effect of [the 2002] amendment has been to further curtail the inmate's right of access to records maintained by the [Justice and Public Safety Cabinet] and correctional facilities" under its jurisdiction. 03-ORD-073, p. 3. See also 04-ORD-015; 03-ORD-091; 03-ORD-007. To this extent, the identity of the requester is directly relevant and inmates no longer have "the same right to inspect public records as any other person" as a result of the amendments to KRS 197.025(2), at least with respect to records in the custody of facilities such as KSP. 99-ORD-161, p. 3.
Because the medical records at issue do not contain a specific reference to Mr. Heras as required by the current version of KRS 197.025(2), he is not entitled to inspect or receive copies of those records, notwithstanding his assertion that KSP has not provided him with "any form of documentation reflecting any medical bills for which" he may be liable. Regardless of the hardship Mr. Heras believes KRS 197.025(2) imposes on him, he is precluded from inspecting or receiving copies of records which do not contain a specific reference to him by the mandatory language of this provision. 99-ORD-161, p. 2. That being the case, KSP properly invoked KRS 197.025(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l) , in denying Mr. Heras' request to inspect Mr. Ethridge's medical records. In light of this determination, consideration of the remaining arguments raised by Ms. Dennis is unwarranted.
A party aggrieved by this decision may appeal it by initiating an 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 Among the public records excluded from the application of KRS 61.870 to 61.884 by operation of KRS 61.878 are "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l).