Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Hardin County Detention Center violated the Open Records Act in the disposition of Riley Caldwell's January 10, 2005, request for a copy of his MRI results and his February 14, 2005, request a copy of "what the neurosurgeon prescribed . . . for treatment . . . [of] the numbness and pain in [his] neck and back . . . ." For the reasons that follow, we find that the Center violated the Act in failing to treat Mr. Riley's requests as open records requests and in refusing to produce the requested records until after Mr. Riley is released based on its security policies and procedures restricting inmate possession of paper products for fire safety reasons.
In supplemental correspondence directed to this office following commencement of Mr. Caldwell's appeal, Hardin County Attorney Ken M. Howard elaborated on the Center's position. On behalf of the Center, Mr. Howard asserted that because Mr. Caldwell submitted his request on a "Hardin County Detention Center Medical Request" form, the Center was not on reasonable notice that the request was an open records request and could not be expected to respond accordingly.
Alternatively, and assuming arguendo that the medical request could be considered an open records request, Mr. Howard advised that Mr. Caldwell was afforded an opportunity to inspect the requested records "in conjunction with his medical treatment by the Hardin County Detention Center medical staff, and that upon receipt of his request for copies of those records, the Center immediately responded by notifying him that "he could get photocopies . . . upon his release from the Hardin County Detention Center." 1 He explained that the Center's "security policies and procedures . . . restrict[] the amount of paper products any inmate may possess in his or her cell for fire safety reasons." It was therefore his position that Center complied with the Open Records Act. Respectfully, we do not agree.
To begin, we find that regardless of whether Mr. Caldwell's request was specifically identified as an open records request, the Center was obligated to treat it as such. With reference to the sufficiency of a records request, in 99-ORD-148 this office noted that even if a request "is not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfies the requirements of KRS 61.872(2), relative to written application, [as long] as it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2; 04-ORD-048. When such a request is tendered, the statutory requirements codified at KRS 61.880(1) are triggered and an agency is obligated to respond in a proper and timely fashion.
Mr. Caldwell's requests satisfied the minimum requirements of a properly framed open records request found at KRS 61.872(2) insofar as it was in writing, described the records to be inspected, was signed by the applicant, and contained his name printed legibly thereon. 2 This being the case, the Center was obligated to issue a response that "include[d] a statement of the specific exception authorizing the withholding of the record[s] and a brief explanation of how the exception applies to the record[s] withheld." The duty to properly respond does not place an undue burden upon public servants," the Court of Appeals has observed, "[t]he agency may deny the request, or may ask for a more specific request, or may even tell the person asking for the documents that another custodian has the records, but the agency is required to promptly respond to the request in some fashion." George William Sykes v. James Kemper, Ky., App., 2000-CA-000714-MR (3/30/01), petition for rehearing denied, July 20, 2001 (unpublished opinion holding that the failure to issue a proper response to an open records request was not excused by the requester's failure to identify the request as a request made under KRS 61.870 et seq. ). 3
As noted, in denying Mr. Caldwell's requests the Hardin County Detention Center notified him that he could obtain copies of his medical records only after his release from the Center. The Center later advised that he was precluded from obtaining copies of these records by virtue of security policies and procedures restricting the amount of paper products inmates may possess in their cells. This does not constitute a legally recognized basis for denying an open records request. Neither the Center, in its original denial, nor Mr. Howard, in his supplemental denial, cites any statutory authority in support of the denial of Mr. Caldwell's request. The Center's internal policy or procedure is not commensurate with an enactment of the General Assembly prohibiting or restricting or otherwise making confidential public records or information per KRS 61.878(1)(l). Nor did the Center rely on any arguable applicable statutory authority for its position. 4 We therefore find that unless the Hardin County Detention Center can articulate a statutory basis for denying Mr. Caldwell's requests for copies of his medical records, copies of those records must be immediately released to him upon prepayment of a reasonable copying charge not to exceed ten cents per page. 5 Accord, 99-ORD-95; 01-ORD-15; 03-ORD-020; 04-ORD-098.
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.
Riley Caldwell, 301AHardin County Detention Center100 Lawson Blvd.Elizabethtown, KY 42701
Louis B. Lawson, JailerHardin County Detention Center100 Lawson Blvd.Elizabethtown, KY 42701
Ken M. HowardHardin County AttorneyP.O. Box 884Elizabethtown, KY 42701-0884
Footnotes
Footnotes
1 The fact that Mr. Caldwell was permitted to review his medical records undermines, rather than supports, the Center's position. This office has long recognized that if inspection is permitted, the " requester enjoys a corollary right to obtain copies" of the requested records. 02-ORD-168, p. 7 citing KRS 61.874(1) and OAG 89-40; see also 04-ORD-053.
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2 The circumstances surrounding Mr. Caldwell's use of the Center's medical request form are unclear. Mr. Caldwell may have believed the medical request form to be an open records request form for medical records. Alternatively, the medical request form may have been the only form available to him. Regardless of the circumstances, we are unwilling to elevate form over substance by requiring any requester, including Mr. Caldwell, to identify his request as a request made under the Act.
3 Although George William Sykes v. James Kemper is an unpublished opinion that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion relative to the duties of public agencies upon receipt of an open records request not clearly identified as such.
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4 KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), thus provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
5 In Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Court of Appeals determined that a ten cent per page copying fee represented a reasonable fee within the meaning of KRS 61.874(3), and this position has been adopted in a series of open records decisions issued by this office. See, e.g., 01-ORD-136 and authorities cited therein.
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