Request By:
Jessie Jones, # 111317
Tami Williams
Heather Nickell
Emily Dennis
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in denying the request of Jessie Jones for "one copy of that physical when I was called to medical on 8-27-07." Having allegedly received no response to his request dated September 6, 2007, Mr. Jones initiated this appeal by letter dated November 17, 2007. Upon receiving notification of Mr. Jones' appeal from this office, Emily Dennis, Staff Attorney, responded on behalf of EKCC, advising that EKCC Medical Records Secretary Pam Cantrell did, in fact, respond to Mr. Jones' request on the same day it was received, September 10, 2007, as evidenced by the attached copy of his request on which the section entitled "disposition" has been completed. More specifically, Ms. Cantrell advised Mr. Jones that no records were being sent as there is "[n]othing on EMR for this date." Accordingly, she asked him to "resubmit with more details please." To the extent Ms. Cantrell requested clarification, her written response is not properly characterized as a denial; likewise, a public agency cannot produce for inspection or copying a record which does not exist. In any event, Mr. Jones' appeal is untimely under KRS 197.025(3).
While Ms. Cantrell "failed to cite with specificity why the record that Mr. Jones requested could not be located," Ms. Dennis spoke with her supervisor, Heather Nickell, and learned "that Mr. Jones' medical records folder (which includes both electronic medical records (EMR) and hard copy file records) reflects that his last physical was on November 30, 2005, that Mr. Jones was not even seen by the medical department on August 27, 2007, and that the closest date in time to which Mr. Jones has any entry on the EMR is August 22, 2007." 1 On this issue, 05-ORD-108, a copy of which is attached hereto and incorporated by reference, is controlling; a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess. See 06-ORD-183. That being said, further elaboration is unnecessary insofar as Mr. Jones did not file his appeal within twenty (20) business days of when EKCC denied his request as correctly argued by Ms. Dennis on appeal.
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.
As evidenced by the record, EKCC denied Mr. Jones' request on September 10, 2007; however, Mr. Jones's letter of appeal is dated November 17, 2007, and was received by this office on November 20, 2007. By its express terms, KRS 197.025(3) applies to any denial of a request submitted by an inmate under the Open Records Act. Because Mr. Jones is "a person confined in a penal facility," and failed to challenge the denial of his request by EKCC within 20 days, in accordance with KRS 197.025(3), his appeal is untimely. Accordingly, this office is precluded from addressing the merits of Mr. Jones' appeal. See 03-ORD-007; 02-ORD-54.
As noted by Ms. Dennis, pursuant to Kentucky Corrections Policies and Procedures (CPP) 14.6 "any complaint that Mr. Jones has regarding his medical care should be addressed to the KY DOC through the grievance process, not to the Attorney General in an open records appeal." However, Mr. Jones "demonstrates no violation" of the Open Records Act, "since the EKCC medical department thoroughly searched Mr. Jones' medical records and found that Mr. Jones was not, in fact, seen by the medical department, let alone given a physical, on August 27, 2007, the date for which he requested [a] record of an alleged physical." In sum, the position of EKCC, as articulated by Ms. Dennis on appeal, is entirely correct. Because EKCC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," EKCC could not be said to have violated the Act even assuming that Mr. Jones' appeal was timely. 05-ORD-109, p. 3.
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 An affidavit to this effect, signed by Ms. Nickell, NSA, Correct Care, on August 29, 2007, is attached to Ms. Dennis' response.