Request By:
Allan Kinney, # 182302
Northpoint Training Center, Dorm # 3
P.O. Box 479
Burgin, KY 40310Andrea Windsor
Secretary 111, Health Services
Northpoint Training Center
P.O. Box 479
Burgin, KY 40310Mary Dean
Medical Records Custodian
Northpoint Training Center
P.O. Box 479
Burgin, KY 40310Emily Dennis
Staff Attorney
Justice and Public Safety Cabinet
Office of Legal Services
125 Holmes Street, Second Floor
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northpoint Training Center violated the Kentucky Open Records Act in denying the request of Allan Kinney for various medical records because he failed to submit the appropriate documentation. Because NTC merely complied with KRS 61.874(1), and 501 KAR 6:020, Corrections Policy and Procedure (CPP) 6.1., in responding to the request submitted by Mr. Kinney, this office affirms the position of NTC; Mr. Kinney's appeal is time-barred as to the remainder of his requests pursuant to KRS 197.025(3).
On October 4, 2005, Mr. Kinney requested to inspect his medical records, specifically those relative to his "last PPD shot, " and "everything else" in his medical records. In a timely written response, Andrea Windsor, Secretary III, Health Services, advised Mr. Kinney that he could inspect the requested medical records, but should first ask his "CTO" for the appropriate form. On September 22, 2005, Mr. Kinney reiterated his initial request; Mr. Kinney inquired as to the status of his "x-rays concerning tuberculosis" by request dated October 31, 2005, and requested copies of any medical records pertaining to his "TB testing" and the "PPD skin test reading and results" on November 8, 2005. Upon receiving the response of NTC (on December 6, 2005) to his "grievance dated 05-567," Mr. Kinney requested a written list of "all the medications" that NTC administered to him with the dosage of each and the side effects relative to his hand injury. Having failed to acquire copies of his medical records, Mr. Kinney initiated this appeal by undated letter received on December 16, 2005, indicating that he authorized "Mrs. Mudd in Dorm 3" to deduct the amount of any copying fees from his inmate account on November 18, 2005.
Upon receiving notification of Mr. Kinney's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of NTC. According to Ms. Dennis:
Mr. Kinney's appeal should be dismissed as untimely. Pursuant to KRS 197.025(3), any person confined in a penal facility shall challenge any denial of an open records request with the Attorney General by mailing or otherwise sending appropriate documents to the Attorney General within 20 days of the denial. All of the open records requests that Mr. Kinney includes with his appeal [are] five open records requests dated 9/22/05, 10/04/05, and 12/06/05. The other two (2) request copies are illegible. [NTC] received and responded to the legible requests on the following dates: 9/27/05, 10/06/05, and 12/08/05. [Copies of these responses are attached to Ms. Dennis' response as Exhibits 1-3. 1] Mr. Kinney's appeal letter to your office is undated; however, it appears from the date of the appeal log number that his appeal was submitted sometime after 01/01/06. The last possible date from which Mr. Kinney could have timely initiated an appeal to your office based on the legible requests received was 12/28/05. Since Mr. Kinney initiated his appeal more than twenty (20) days after the denial, the appeal should be considered time-barred pursuant to KRS 197.025(3).
In a letter received by this office on February 3, 2006, Ms. Dennis supplemented her response on behalf of NTC. According to Ms. Dennis, the response of NTC to Mr. Kinney's request that was received on December 8, 2005, complied with the Open Records Act as well as 501 KAR 6:020, Corrections Policy and Procedure (CPP) 6.1. More specifically, KRS 61.874(1) "authorizes a public agency to require a written request and advance payment of the prescribed fee when copies are requested." Under KRS 422.317(2), 2 the Department of Corrections is not considered a healthcare provider "and is therefore exempt from providing free copies of medical records." Citing
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), Ms. Dennis argues that an inmate therefore "has the right to obtain copies of non-exempt public records so long as he pays a reasonable copy fee." Relying upon "CPP 6.1(VI)B.4," Ms. Dennis correctly notes that Mr. Ulrich did not deny Mr. Kinney access to his medical records; Mr. Ulrich "simply informed Mr. Kinney of Mr. Kinney's obligation under CPP 6.1 to submit all appropriate documentation to pay for copies of the medical records requested."
Upon submission of a request for medical records that NTC received on January 4, 2006, while this appeal was pending, "Mr. Kinney complied with all provisions of CPP 6.1 and received five (5) copies of records responsive to his request for '. . . copies of all PPD shots and result of those shots and any x-ray results relating to PPD test.'" Although the records provided to Mr. Kinney do not appear to be the same records requested on December 8, 2005, "it is Mr. Kinney's obligation to resubmit the request in conformity with the requirements of CPP 6.1 so that he may receive copies of records" responsive to his request. In conclusion, Ms. Dennis reiterates that Mr. Kinney's appeal relative to the remainder of his requests does not comply with KRS 197.025(3) "and therefore should be dismissed as time-barred. " On both counts, Ms. Dennis is correct.
In addressing the unique issues surrounding access to public records in this context, the Attorney General has repeatedly recognized:
An inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. Although, as we have recently observed, "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof," an inmate's movements within the facility are presumably restricted . . . Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records.
95-ORD-105, p. 3, citing 94-ORD-90, p. 2. See also 92-ORD-1136; OAG 91-129; OAG 89-86; OAG 82-394; OAG 79-582; OAG 79-546.
When copies of public records are requested, "the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." KRS 61.874(1). Neither this provision nor the remainder of the Open Records Act contains a waiver of this requirement for inmates. Accordingly, the Attorney General has previously held that correctional facilities such as NTC may properly require prepayment of copying fees, and enforce standard policies regarding assessment of charges against inmate accounts, despite the delay in processing the request which may inevitably result. 95-ORD-105, p. 3. However, this holding has not been construed to authorize any delay beyond that which is reasonably necessary to ensure prepayment of copying charges. Id.
In 04-ORD-004, this office expressly upheld the validity of CPP 6.1. More specifically, the Attorney General affirmed the denial by Eastern Kentucky Correctional Complex of the inmate request at issue due to the failure of the inmate to provide the inmate identification information required by CPP 6.1, holding that denial was "proper and consistent with its policies and procedures relating to inmate open records requests," as well as KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 04-ORD-004, p. 3. Although NTC relies upon a separate but related requirement (CPP 6.1 VI.B.4. rather than VI.B.1.), the reasoning 0f 04-ORD-004, a copy of which is attached hereto and incorporated by reference, is equally controlling here; no violation occurred. A review of KRS 422.317(2) further validates this conclusion as correctly argued by NTC on appeal.
With respect to the requests submitted by Mr. Kinney on October 4, 2005, September 22, 2005, October 31, 2005, and November 8, 2005, this appeal is untimely. Pursuant to KRS 197.025(3):
KRS 61.880 notwithstanding, all persons confined in a penal facility shall challenge the denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in circuit court. (Emphasis added).
Because Mr. Kinney's undated letter was not received by this office until December 16, 2005, his appeal is time-barred as to the specified requests. On this issue, 05-ORD-041, a copy of which is attached hereto and incorporated by reference, is determinative.
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 On September 27, 2005, Gregory M. Ulrich, Offender Information Specialist, advised Mr. Kinney as follows: "After checking with Inmate Accounts it has been determined that you do not have sufficient funds to pay the fee for the copies." As further observed by Mr. Ulrich:
CPP 6.1 (VI)(B)(4)(a)(b) states "I the inmate does not have sufficient funds for payment of the fee, he may request the opportunity to inspect the record, or he may re-file his request upon receipt of sufficient funds to cover payment of the fee." Therefore, I am denying your request for copies; however, per KRS 61.872(1) you have the right to inspect any records that are not closed by statute.
In a letter dated December 8, 2005, Mr. Ulrich cited KRS 61.874(1), which, in relevant part, provides: "When copies are requested, the custodian may require a written application, signed by the applicant and advance payment of the prescribed fee." Citing CPP 6.1, Mr. Ulrich further advised Mr. Kinney that a "Request for Inspection of Records form shall be obtained from your Classification and Treatment Officer. Attached to the Request must be a completed Authorization to Use Inmate Account Form." As correctly observed by Mr. Ulrich, these documents "are needed before your request can be processed."
2 In relevant part, KRS 422.317 provides:
(2) The Department of Corrections shall not be considered as a health care provider under this section; however, the department may make medical records of an individual inmate available to that individual inmate unless the department, through its designee, determines that the provision of the record is subject to the provisions of KRS 197.025.