Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Little Sandy Correctional Complex violated the Kentucky Open Records Act in denying Marvin Pennington's request for a copy of the "memo from Dr. Ron Everson stating treatment or level of care for inmates here at LSCC-dated Oct-30-2008." Because the record which is responsive to Mr. Pennington's request does not contain a "specific reference" to him, LLCC properly denied access on the basis of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). To hold otherwise would contravene governing precedents.
In a timely written response, Beth Harper, LSCC Offender Information Services, denied Mr. Pennington's request on behalf of LLCC, quoting the mandatory language of KRS 197.025(2) in support of the denial because the "requested memo does not specifically reference" him. Arguing that he is "part of that class of people to be affected [solely] and wholly by" the memorandum in dispute, Mr. Pennington subsequently initiated this appeal. Upon receiving notification of his appeal, Staff Attorney Leigh K. Meredith, Justice and Public Safety Cabinet, supplemented the agency's response, in relevant part, as follows:
With respect to inmate open records requests for medical protocols that do not contain a "specific reference" to inmates, the Attorney General's Office has held that 03-ORD-074 and 03-ORD-073 are controlling. 07-ORD-219. In 03-ORD-073, the Attorney General upheld the Department of Corrections' denial of an inmate's request for a copy of [a] "memorandum outlining changes in work programs for inmates diagnosed with Hepatitis" stating that "[t]he language of KRS 197.025(2) has since been narrowed to require that the records requested by the inmate contain a specific reference to the [requesting inmate] ." 03-ORD-073, p. 3.
After reviewing the appeal, the undersigned counsel contacted Beth Harper at LSCC regarding the content of the requested record. Ms. Harper indicated that the record requested by Inmate Pennington is a Memo from Dr. Ron Everson directed to the medical staff at LSCC regarding the level of care for patient inmates. Ms. Harper also confirmed that the Memo from Dr. Ron Everson does not contain any specific reference to Marvin Pennington #119935. While the record[s] may pertain to Mr. Pennington regarding the level of care for inmates, the Memo addressed to medical staff at LLCC "do[es] not mention him by name, inmate number, or any other specific personal identifier, as required by KRS 197.025(2), and he is therefore statutorily foreclosed from obtaining copies of the record[] sought." 07-ORD-219, p. 3.
Based upon the foregoing, Ms. Meredith asks the Attorney General to affirm the denial of Mr. Pennington's request.
In our view, 04-ORD-076 and 03-ORD-073 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. As consistently recognized by the Attorney General, KRS 197.025(2) expressly authorizes correctional facilities like LLCC to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. Because the record(s) at issue do not contain a specific reference to Mr. Pennington, as required by the language of KRS 197.025(2), he is not entitled to inspect or to receive copies of those records, notwithstanding his underlying concerns. Regardless of the hardship Mr. Pennington may believe that application of KRS 197.025(2) imposes, he is expressly precluded from gaining access to records which do not contain a specific reference to him by the mandatory language of this provision; accordingly, LLCC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying his request. 99-ORD-161, p. 2. See also 07-ORD-219; 03-ORD-074.
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.