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 Eastern State Hospital, which is managed by Bluegrass Regional Mental Health - Mental Retardation Board, Inc., on behalf of the Cabinet for Health and Family Services, did not violate the Open Records Act in the disposition of Phil Tkacz's request for death and burial records for the Eastern State Hospital Cemetery. On behalf of Eastern State Hospital, Kim White, Director of the Medical Records Department, notified Mr. Tkacz that there is no list of hospital patients buried in the cemetery.
In supplemental correspondence directed to this office following commencement of this appeal, Executive Counsel Jonathan E. Copley advised this office and Mr. Tkacz that although Bluegrass is the custodian of medical records, it is not the custodian of death and burial records. He suggested that because the Cabinet for Health and Family Services maintains such records, Mr. Tkacz should resubmit his request to that agency. Having previously advised Mr. Tkacz that Eastern State Hospital does not maintain the records he seeks and subsequently advised him that such records might be available from the Cabinet for Health and Family Services, Eastern State Hospital fully discharged its statutorily assigned duties under the Open Records Act.
In 07-ORD-003, this office addressed a similar issue involving access to information relating to Kentucky deaths. This office approved the agency's disposition of the request which included a referral to a separate agency for responsive records. This referral was consistent with KRS 61.872(4) which provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Because Eastern State Hospital does not maintain records responsive to Mr. Tkacz's request, the Hospital, through Bluegrass Regional Mental Health - Mental Retardation Board, Inc., advised him where the records might be located. It could do no more. We therefore find that Eastern State Hospital did not violate the Open Records Act in the disposition of Mr. Tkacz's 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 proceeding.
Philip TkaczKim WhiteJonathan E. CopleyAnne E. Burnham