Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Little Sandy Correctional Complex subverted the intent of the Open Records Act by denying the existence of records relating to a medical examination he underwent on November 18, 2009. The record on appeal, coupled with the record in past appeals filed by Mr. Pasha relating to these records, evidences a pattern of obfuscation on the part of Little Sandy Correctional Complex that contravenes both the letter and the spirit of the Open Records Act. We remind them that KRS 61.882(5) authorizes the courts to award monetary penalties to "any person who prevails against any agency in any action in the courts regarding a violation of [the Open Records Act] . . . upon a finding that the records were willfully withheld . . . ."
On January 6, 2010, Mr. Pasha requested, inter alia, medical records relating to a November 18, 2009, examination he underwent. He received records relating to other examinations but was notified that no medical records exist for a November 18, 2009, examination. This office issued a letter so advising him on February 8, 2010. On February 18, 2010, Mr. Pasha again requested medical records relating to the examination conducted on November 18, 2009. He was again advised that no responsive records exist, but, upon appeal, was notified that the examinations had been located and were available to Mr. Pasha upon payment of copying charges. The Attorney General issued a letter confirming these statements on March 9, 2010.
On appeal, Mr. Pasha explains:
Before a prisoner is allowed to submit an Open Records Request he must sign a Money Transfer Form authorizing K.D.O.C to deduct from his/her account the copying fee requested. The Open Record Request and Money Transfer Form must be signed before and given to the Classification Treatment Officer, who is the Representative of the Agency and starts the five (5) working day time limitation. Thus, when LSCC allegedly found my requested document and made it available the Records Clerk was ALREADY in possession of my Request and Money Form. So why was I required to submit another?
It is his position that Little Sandy Correctional Complex was obligated "to produce the documentation when it alleged it was available in [earlier appeals]" and not to advise him to resubmit his request.
In supplemental correspondence directed to this office, a representative of the Justice and Public Safety Cabinet's Office of Legal Services acknowledged that Little Sandy Correctional Complex's March 15, 2010, assertion that "the requested records do not exist . . . is simply not true." Consequently, counsel indicated that he would "forward to Mr. Pasha a copy of the records he requested," and "communicat[e] with the administration at Little Sandy Correctional Complex . . . to determine where the process of locating and producing medical records has been derailed." Shortly thereafter, Mr. Pasha notified this office and Cabinet counsel that the letter he received from counsel did not contain lab results or cardiology results from the November 18 examination. After months of correspondence with Little Sandy Correctional Complex, Mr. Pasha's right of inspection has not been fully honored.
Cabinet counsel acknowledges that Mr. Pasha has not been accorded proper treatment under the Open Records Act. It is therefore incumbent on Little Sandy Correctional Complex to ascertain whether Mr. Pasha's medical file contains cardiology or lab reports generated during his November 18, 2009, examination. These records must be released to Mr. Pasha if they exist. If they do not exist, Mr. Pasha is entitled to a written explanation for their nonexistence. Continued obfuscation on the part of the correctional facility is impermissible.
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.
Uriah Pasha, # 92028Beth HarperJonathan S. Milby