Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Lee Adjustment Center violated the Kentucky Open Records Act in failing to comply with Michael Esposito's request for copies of his medical records and his "two previous [requests]" for his medical records within the statutorily required time frame. On appeal, Mr. Esposito contended that LAC had not provided him copies responsive to his November 13, 2009, request until November 23, 2009, and that LAC consequently erred in charging him for the copies because his request "was not answered in 5 days." Because the record on appeal establishes that November 23, 2009, was the fifth business day after LAC apparently received the request, 1 and its response thus complied with KRS 197.025(7), this office does not reach Mr. Esposito's remaining claim.
Upon receiving notification of Mr. Esposito's appeal from this office, Cole Carter, Assistant General Counsel, Corrections Corporation of America, responded on behalf of LAC, arguing that Mr. Esposito's "allegation of delay is incorrect, making unnecessary any response to the suggestion that LAC should have provided the records at no cost to him." 2 More specifically, Mr. Carter noted that Mr. Esposito's copy of his request form does not contain any date stamp indicating the date on which it was received by the LAC Records Department; however, the LAC Records Custodian provided Mr. Carter with a copy of the form, which Mr. Carter reproduced in his response letter. It contains a date stamp indicating that Mr. Esposito's request was not received until November 16, 2009. "Having responded to numerous open records appeals," Mr. Carter "can report from personal experience that the date stamp is the customary means used by the records department at LAC to indicate when a request is actually received. " 3 According to Mr. Carter's calculations, Mr. Esposito's "receipt of the records on November 23, 2009, was timely." Mr. Carter did not address Mr. Esposito's request for a waiver of the copying fees "because the foundational allegation is incorrect. " 4 This office agrees on both counts.
Resolution of this appeal turns on the application of KRS 197.025(7) , pursuant to which:
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the records shall be released.
In addressing the procedural requirements of the Open Records Act relative to correctional facilities, the Attorney General has recognized that the General Assembly substantially amended KRS 197.025 during the 1998 legislative session. 99-ORD-102, p. 2. Among the amendments to KRS 197.025 enacted by the General Assembly was the aforementioned provision extending the three day deadline for agency response to an open records request found in the residual statute codified at KRS 61.880(1), 5 to five days for the Department of Corrections and state correctional facilities. Id. "KRS 61.880(1) is a general [statutory provision] that only applies where there is no other applicable statutory deadline for agency response" whereas KRS 197.025(7) is a specific statutory provision establishing the deadline by which the DOC and facilities such as LAC must respond to open records requests. Id. Where two statutes address the same subject, "the specific shall prevail over the general."
City of Bowling Green v. Board of Education of Bowling Green, Ky., 443 S.W.2d 243, 247 (1969). Accordingly, KRS 197.025(7) applies here, as both parties have acknowledged; the only dispute centers on whether LAC provided the records to Mr. Esposito within the relevant statutory time frame, and the copy of the request form provided in response to his appeal seems to confirm that LAC did.
On the section of the "Request to Inspect Public Records" form entitled "Disposition" LAC indicated that his request was "forwarded to Medical" on "11/16/09" and that "199 pages" were forwarded to "Records" on "11-19-09" by "H. Williams." In addition, "1 copy" of his "last records request" from "10/21/09" was apparently forwarded. 6 LAC acknowledged receipt of $ 20.00 (200 copies at 10 cents each) in payment for the copies received on "11/23/09." 7 By letter dated January 6, 2010, but received in this office January 11, 2010, Mr. Esposito asserted that he submitted his request on "the 13th of November and even the copy supplied by LAC reflects that date. . . . Apparently recognizing they had violated the five (5) day provision the facility affixe[d] a date days later than the date actually submitted and promptly provided the records the following Monday." Mr. Esposito was apparently referring to the notation of "11-13-09" located in the upper right hand corner of the form, which appears to be in his own handwriting. In the absence of any objective proof that LAC altered the request form after the fact or that LAC otherwise acted in bad faith, this office has no basis upon which to find a violation of the Act in light of the date stamp indicating that "Nov 16 2009" is the date upon which "LAC RECORDS" actually received the request. Given that November 23, 2009, was the fifth business day following receipt, LAC responded in a timely manner; accordingly, consideration of Mr. Esposito's remaining allegation is unwarranted.
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.
Michael Esposito, # 331296Bobby MooreCole CarterAmy V. Barker
Footnotes
Footnotes
1 KRS 446.030(1)(a) provides:
In computing any period of time prescribed by order of court, or by any applicable statute, the day of the act, event or default after which the designated period of time begins to run is not to be included.
2 Even if this office reached Mr. Esposito's claim, the Open Records Act contains no provision requiring a public agency to waive its copying fee if the records are not produced in a timely fashion. Pursuant to KRS 61.882(5), only the courts may impose monetary penalties and only "upon a finding that the records were willfully withheld in violation of" the Open Records Act.
3 Use of a date stamp is the "customary means" used by this office as well and is the protocol for most agencies in our experience.
4 Mr. Esposito argued that when LAC "failed to answer other inmate's Open Records requests [within] five (5) [business] days," those individuals "were provided their records free from charges"; however, the record on appeal is devoid of any objective proof to substantiate this contention. Although this office has long disapproved disparate treatment of open records applicants, recognizing that neither the identity of the requester nor his purpose in requesting access is legally relevant, Mr. Esposito was not denied access nor does the record support his claim that LAC delayed access beyond the statutory time frame. If Mr. Esposito has evidence that LAC tampered with records, he may wish to consider the options available under KRS 61.991(2)(a); such issues cannot be resolved in this forum, nor does the record on appeal contain any evidence of such wrongdoing.
5 In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under this authority, and it shall constitute final agency action.
6 Although Mr. Esposito requested his "two previous [requests]," he did not raise this issue on appeal; this office must assume that he was satisfied with the copy provided.
7 It is unclear why the receipt attached to Mr. Esposito's appeal indicates that he authorized a deduction of $ 20.00 from his inmate account on November 13, 2009, but he could have authorized this deduction prior to submitting his request and this apparent discrepancy is therefore not dispositive standing alone.