Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Penitentiary violated the Kentucky Open Records Act in the disposition of Darcy Perkins' August 24, 2010, request for all of his medical records for the period of May 1, 2010, through June 30, 2010, including all "chart entries, notes, and orders." Despite making several requests, beginning on July 13, 2010, Mr. Perkins maintains on appeal that he "received only part of his medical records, the last of which [were] received on August 30, 2010." Because KSP confirms on appeal that Mr. Perkins received all existing documents responsive to his request(s), with only minimal information legitimately redacted, this office finds no error in the agency's disposition of his request(s). KSP cannot produce nonexistent records for inspection or copying and the agency was entitled to redact any portion(s) of the existing responsive documents which did not specifically reference Mr. Perkins on the basis of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
Upon receiving notification of Mr. Perkin's appeal from this office, Staff Attorney Jonathan S. Milby, Justice and Public Safety Cabinet, responded on behalf of KSP, advising that the "entire contents of the electronic medical record ("EMR") system for his records during the range requested" were provided to him, "with a note explaining that some information on one of the prescriptions had been redacted pursuant to KRS 197.025(1) as a security risk. Otherwise, the documents were provided in their entirety." Mr. Milby further noted that he "confirmed with medical staff at KSP that no additional medical records for the date range requested exist." Although KSP initially failed to cite KRS 197.025(2) in advising Mr. Perkins that the redacted portion "does not reference you specifically," Mr. Milby explained, the fact it does not "makes it subject to exclusion pursuant to KRS 197.025(2)," in addition to being "deemed a security risk by the commissioner or her designee pursuant to KRS 197.025(1)," 1 upon which Sally Tyler, Office Support Assistant II, expressly relied in her August 26, 2010, response. Accordingly, Mr. Milby concluded, "KSP has produced all existing responsive documents and has discharged its duty under the Open Records Act. " This office agrees; the denial is affirmed in accordance with governing precedents.
For example, in 09-ORD-095 this office concluded, in accordance with 03-ORD-073 and 04-ORD-076, that Western Kentucky Correctional Complex properly relied upon KRS 197.025(2) in redacting certain entries which did not contain a specific reference to the inmate requester from the subject mail log as he "was allowed to inspect all entries in the log book that pertain to him for the requested time frame." Id., p. 3. This office further held that WKCC could not afford the inmate requester access to nonexistent records or those which it did not possess, nor did it have to "prove a negative," relying upon Bowling, supra, and a line of prior decisions by this office, particularly 07-ORD-188 and 07-ORD-190. Here, as in 09-ORD-095, this office finds that because KRS 197.025(2) authorizes the agency to withhold records, or portions of records, as the case may be, which do not contain a specific reference to the inmate requester, and the agency was not statutorily required to produce nonexistent records for inspection or copying, it cannot be said to have violated the Open Records Act in the disposition of the request. 09-ORD-095, p. 3. The reasoning of that decision, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. As the Attorney General has long recognized, this office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3.
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.
Darcy Perkins, # 207497Sally TylerJonathan S. Milby
Footnotes
Footnotes
1 Consideration of this argument is unnecessary given our conclusion that KRS 197.025(2) is facially determinative.
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