Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Luther Luckett Correctional Complex violated the Kentucky Open Records Act in denying James Carl Higgs' November 29, 2012, request for the "DOC [Department of Corrections] Correct Care protocol for administ[e]ring Hep-A virus medications to individuals with Hep-C." In a timely written response, Medical Administrative Assistant Cari Evans advised Mr. Higgs that any such records were "not a part" of his medical records and therefore could not be released without further explanation. Arguing that his medical records do reflect that he "received injections of the HAV vaccines beginning [in] December 2009 and ending [in] July 2009," and that he needs the records in dispute to assist with his pending lawsuit, wherein he alleged that said injections caused his injuries, Mr. Higgs initiated this appeal by letter dated December 7, 2012. Upon receiving notification of Mr. Higgs' appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of LLCC. Ms. Barker noted that Ms. Evans' response was accurate, but acknowledged that additional information should have also been provided. Specifically, Ms. Barker explained that the requested Hepatitis protocol "is not the type of record that contains a reference to any specific inmate. " Referencing prior decisions of this office, including 03-ORD-073 and 04-ORD-076, Ms. Barker correctly observed that KRS 197.025(2) authorizes correctional facilities like LLCC to deny a request by an inmate unless the record contains a specific reference to that inmate, and that KRS 197.025(2), in conjunction with KRS 61.878(1)(l) , "clearly shows that LLCC is not obligated to provide copies of records when the records do not contain a specific reference to the" inmate requester. This office agrees that KRS 197.025(2) is controlling. Because the instant appeal presents no basis to depart from the line of decisions upon which LLCC ultimately relied, this office affirms the agency's final disposition of his request.
Specifically, the reasoning found in 03-ORD-073 and 04-ORD-076 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. As the Attorney General has consistently recognized, KRS 197.025(2) expressly authorizes correctional facilities like LLCC to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. See also 00-ORD-040; 03-OR-074; 07-ORD-219; 10-ORD-136; 12-ORD-070. Because the records at issue do not contain a specific reference to Mr. Higgs, as required by the language of KRS 197.025(2), he is not entitled to inspect or to receive a copy of those records, notwithstanding his underlying concerns. Regardless of the hardship Mr. Higgs may believe that application of KRS 197.025(2) imposes under the circumstances, he is expressly precluded from gaining access to records which do not contain a specific reference to him by the mandatory language of this provision; accordingly, LLCC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying his request. 99-ORD-161, p. 2.
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:
James Carl Higgs, # 084908Cari EvansAmy V. Barker