Request By:
James David Adkins # 217329
Gerry ("Rip") Wright
Gregory B. Hill, Esq.
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Ohio County Detention Center ("OCDC") violated the Open Records Act in regard to James David Adkins' December 12, 2008, request for a copy of his medical records. We find that the OCDC violated the Act by not responding to the request.
Mr. Adkins, currently an inmate at the Green River Correctional Complex, was formerly confined in the OCDC. His attempts to obtain a copy of his medical records from the OCDC began with a request made to the jailer in October 2008 for "copies of all records including but not limited too [ sic ] booking records, medical records, medical request forms, etc." The OCDC did not respond to that request and Mr. Adkins initiated an appeal to this office, which resulted in our decision 08-ORD-257. In response to that appeal, the OCDC (per deputy jailer Paul Roe) stated, in pertinent part:
As for inmate Adkins request pertaining to pretrial records we do not have access to these files nor do we have access to inmate medical files. Inmate Adkins needed to address those requests to these two different departments within o[u]r facility Division of Pretrial Services, and Medical Department Ohio County Detention Center in care of Nurse Charlotte Hendricks.
Mr. Adkins accordingly submitted a request to Charlotte Hendricks at the OCDC on December 12, 2008, stating in part:
Paul Roe provided the Attorney General's office with a response to the appeal. In the response Mr. Roe stated that the Ohio County Jail had no access to my medical records, that said records are in your posses[s]ion and I needed to contact you to obtain my medical records. ? I am requesting a complete copy of my inmate medical records for time spent in custody at the Ohio County Detention Center for the dates of 1/01/2007 to 8/31/2007.
Mr. Adkins then provided his date of birth and Social Security number. The OCDC did not respond to Mr. Adkins' December 12 request, nor has it responded to this appeal initiated January 16, 2009.
Since the OCDC has made no response to the instant appeal, we have no information from the public agency beyond its answer in response to Mr. Adkins' previous appeal. The OCDC stated on that occasion that it does not "have access to inmate medical files," but yet those documents are maintained in a "department[] within o[u]r facility." A public agency cannot afford a requester access to a record that it does not have. 99-ORD-98. In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess. OAG 86-35. In its response in 08-ORD-257, however, the OCDC stated that the records were maintained by a department within its facility, but yet that somehow it did not "have access" to them.
501 KAR 3:090, Section 1(14), which applies to all jails that may house state prisoners, provides: "Access to the prisoner's medical file shall be controlled by the medical authority and the jailer. " 1 Since Mr. Adkins' October 2008 request was addressed to the jailer, we fail to understand how the jailer could not have access to those records. 2 This is particularly true in light of Section 2(2)(m)(6) of the same regulation, concerning requests by a jailer to transfer a prisoner to the Department of Corrections for medical treatment, which requires the jailer to attach "[p]reexisting medical records" to the transfer request. Obviously the jailer must have some access to prisoner medical records if the law requires him to provide them to the Department of Corrections. A jailer's argument that he has no access to his facility's medical records warrants further inquiries by this office to ascertain the basis for that assertion. To the extent that 08-ORD-257 is inconsistent with this analysis, it is hereby modified.
In regard to this most recent appeal, the OCDC never responded to Mr. Adkins' request for records. Even assuming arguendo , as we did in 02-ORD-141 and 03-ORD-140, that the extended time period of five days given to the Department of Corrections by KRS 197.025(7) applies in this case, we conclude that the OCDC violated the Open Records Act by failing to respond to Mr. Adkins' request.
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 proceedings.
Footnotes
Footnotes
1 "Medical authority" is defined by 501 KAR 3:010, Section 1(14), as "the person or person licensed and certified to provide medical care to prisoners in the jail's custody. " 501 KAR 3:090, Section 1(1), states: "The jail's medical services shall be provided by contracting with a health care provider licensed in Kentucky."
2 We have noted previously that "[a] public agency cannot, by means of a contract with a private company, deprive records of their public character." 09-ORD-020.