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 Kentucky State Reformatory subverted the intent of the Open Records Act, short of denial of inspection, 1 by producing for inmate David Johnson's inspection a medical file that did not contain the record he specifically requested, namely, the "lab results of a stool sample that was taken on or about Nov. 7, 2011." Mr. Johnson did not, as KRS suggests, "request to view his KSR medical record." Accordingly, KSR is not, "as a matter of law, . . . entitled to a finding that inmate Johnson has failed to advance a claim for which relief can be granted, or, in the alternative, that this action is moot. "
By written notation on his November 14, 2011, request to inspect the "lab results of a stool sample that was taken on or about Nov. 7, 2011," KSR advised Mr. Johnson:
Please complete the enclosed form, have it approved by your CTO, and return it to Medical Records. An appointment will be made for you to view your records after we've received your completed form.
Mr. Johnson completed the form, identifying the date of treatment as November 7, 2011, and the "Information to be Disclosed" as "laboratory." The "disposition" portion of the form reads as follows:
11/23/11 request to view sent out RX slip that was returned on 11/30/2011; 11/30/2011 resent appointment slip. Arrived at 9:39 a.m. - 9.55 a.m. I/M stated "that my request was not fulfilled."
Shortly thereafter, Mr. Johnson initiated this appeal asserting that he "was allowed to inspect all records except the records [he] requested to inspect. "
In supplemental correspondence directed to this office, assistant counsel for the Justice and Public Safety Cabinet elaborated on KSR's position, emphasizing that Mr. Johnson "admits that he did view the records; however, the lab results that he asked to see were not in his file at that time." It was the agency's position that:
Appellant was not denied access to public records, nor was he denied access to medical records pertaining to him. His request to view his KSR medical records was granted. He was advised how to obtain the information that he requested. 2
On this basis, counsel asserted that KSR was entitled to a finding that Mr. Johnson "failed to advance a claim for which relief can be granted or, in the alternative, that this action is moot. " We disagree.
Mr. Johnson did not, at any time, ask to review his medical file. Instead, he requested access to a precise and narrowly defined record, namely, the lab results of a stool sample taken on or about November 7, 2011. KSR did not discharge its statutory duty by arranging for him to inspect his medical file. This is particularly true in light of the fact that KSR made no apparent effort to ascertain whether the lab results had been placed in his medical file or to otherwise locate the lab results. As in 11-ORD-036, the facts presented by Mr. Johnson "import the existence" of a responsive record 3 and KSR does not contest the record's existence. Nevertheless, KSR offers no proof that a search for that record was conducted.
In 08-ORD-032, this office determined that a public agency subverted the intent of the Open Records Act "by commingling nonresponsive records with responsive records so as to create unnecessary impediments to effective inspection . . . ." At page 5 of that open records decision, we cited an earlier decision recognizing the agency's duty to "identify, segregate, and disclose the specific record identified in the request that was the subject of the appeal." 07-ORD-105, p. 1, cited in 08-ORD-032. We concluded that:
the language of the statute governing agency action is unambiguous. It requires the agency to produce records responsive to an open records request formulated with sufficient specificity to enable the agency's custodian of records to locate and retrieve those records. 4
The facts giving rise to Mr. Johnson's appeal are more egregious than the facts giving rise to 08-ORD-032 insofar as the facility made no attempt to insure that the responsive record was among the nonresponsive records. Here, as in the referenced decisions, Mr. Johnson's request triggered the agency's duty to conduct a good faith search for the responsive lab results "using methods which could reasonably be expected to produce the record requested." 11-ORD-031, p. 3, citing 10-ORD-051 and 95-ORD-96. The issue presented in this appeal is not moot. More importantly, KSR's duties under the Open Records Act have not been discharged. It is incumbent on the facility to locate and make available for Mr. Johnson's immediate inspection the lab results of his stool sample taken on or about November 7, 2011.
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.
Distributed to:
David Johnson, # 084003Karen VestyBridget FergusonLinda M. Keeton
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 Counsel notes that "Bridget Ferguson, of KSR Medical Records, advised Mr. Johnson to submit a 'Sick Call Slip and ask to speak to a provider if he had any questions due to the information that he was looking for.'" If these are the referenced instructions "how to obtain the information that he requested," they are unclear. More importantly, they do not constitute a KRS 61.880(1) response to an open records request, do not address his right of access to the lab results, and are not supported by contemporaneous documentation.
3 Mr. Johnson would surely know if KSR took his stool sample.
4 Since 08-ORD-032 was issued the Kentucky Supreme Court has established a slightly different standard for determining the adequacy of an open records request. In Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008), the court concluded that an open records request satisfied KRS 61.872(1) if it was "adequate for a reasonable person to ascertain [its] nature and scope . . . ." Mr. Johnson's request clearly satisfied this standard.