Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Western Kentucky Correctional Complex violated the Kentucky Open Records Act in failing to respond upon receipt of James Solomon's request(s) for copies of "the sick call list & nurses log where I was treated on 3-10-06." Because WKCC does not possess any records which are responsive to Mr. Solomon's request, WKCC complied with the Open Records Act by affirmatively indicating as much in a timely written response; the explanation provided by WKCC for the lack of records is entirely credible.
Upon receiving notification of Mr. Solomon's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of WKCC. As correctly observed by Ms. Dennis, "Ms. Solomon fails to demonstrate that the WKCC did not respond to his open records requests in violation of the Kentucky Open Records Act. " On March 23, 2006, Medical Records Custodian George Patterson denied Mr. Solomon's request because Mr. Solomon ". . . was not seen on sick call on 3/10/2006." In further support of her position, Ms. Dennis argues:
As your office has recognized, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 04-ORD-43; 99-ORD-150. To the extent that Mr. Solomon was not seen by the WKCC medical department on the date for which he requests records and a copy of the nurse's log, the WKCC cannot provide Mr. Solomon with records that do not exist. Also, since Mr. Patterson's response was issued within five (5) business days of receipt of the request, the DOC [Department of Corrections] complied with the provisions of KRS 197.025(7). 1
Mr. Solomon's second request letter (dated 4/03/2006) was received by Ms. Amy Roberts, WKCC Offender Information Specialist I. Mr. Solomon utilized a "First Request for Medical Records" form in this case to make a request for "March-10-06 I am requesting a copy of the sick call list & [nurses'] log where I was treated on 3-10-06." Mr. Solomon also included an attachment in which he alleged that the WKCC did not respond in a timely manner to his initial request. [] By letter dated 4/11/2006, Ms. Roberts explained to Mr. Solomon that the initial response was timely because the [DOC] has five (5) business days in which to respond to an open records request pursuant to CPP 6.1. [] Ms. Roberts also explained that his request was denied because Mr. Solomon was not seen by sick call on Friday, 3/10/06. As correctly articulated by Ms. Roberts, KRS 197.025[(2)] states that the [DOC] is not required to comply with a request for any record from any inmate confined in any facility unless the request is for a record that contains a specific reference to that individual. 2 See also KRS 61.878(1)(l). Since Mr. Solomon was not seen by sick call on Friday, 3/10/2006, there are no records responsive to his request.
Attached to Ms. Dennis' response are copies of Mr. Solomon's request dated March 15, 2006, Mr. Patterson's response dated March 23, 2006, Mr. Solomon's request dated April 3, 2006, along with attachment, and the response provided by Ms. Roberts on April 11, 2006.
In our view, the analysis contained in 05-ORD-108, a copy of which is attached hereto and incorporated by reference, is equally applicable here; a public agency such as WKCC is not required to honor a request for records which do not exist. Because Mr. Solomon was not seen by the WKCC Medical Department on the specified date, WKCC does not possess any records which are responsive to his request. Having affirmatively indicated to Mr. Solomon in a timely written response that no records of the type requested exist, WKCC fully complied with the Open Records Act; the explanation provided by WKCC for the lack of records is entirely credible.
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.
James Solomon, # 135190-D-2Western Kentucky Correctional Complex374 New Bethel RoadFredonia, KY 42411
George PattersonMedical Records CustodianWestern Kentucky Correctional Complex374 New Bethel RoadFredonia, KY 42411
Ellen CockerhamInstitution CoordinatorWestern Kentucky Correctional Complex374 New Bethel RoadFredonia, KY 42411
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 See 04-ORD-046.
2 With respect to the application of KRS 197.025(2), 04-ORD-076, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented.