Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in the disposition of inmate Don Phillips' request for copies of medical records relating to him. For the reasons that follow, we find that the EKCC's response was substantively in compliance with the Act.
Mr. Phillips' request, dated September 17, 2013, but received by the records department on September 26, 2013, was addressed to "EKCC, Medical Department," and asked for the following:
(1) Laboratory report(s) for blood samples drawn from me at EKCC Medical Department on September 10, 2013; and,
(2) Laboratory report(s) on blood drawn from me in August 2012.
On October 1, 2013, the facility recorded the disposition as follows: "I[n]m[ate] was mailed 2 pgs of labs. "
Mr. Phillips initiated an open records appeal on September 25, 2013, before his request had been received by the records custodian. On October 8, 2013, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of the facility that all records had been provided. That same date, Mr. Phillips sent this office a letter indicating that he had received "the results of the blood work done in September, 2013, but did not include the results from 2012, which were also requested."
After this office provided Ms. Barker with a copy of Mr. Phillips' October 8, letter, she referred the matter to Ms. Cantrell, who sent a memorandum to Mr. Phillips on October 21, 2013, reading as follows:
I have reviewed your records for the labs that you requested that was [ sic ] supposed to have been drawn in 2012. I couldn't find any labs for the month of August in 2012. All that you had drawn in 2012 was for the months of March and April, then the next labs that was [ sic ] drawn was for this year.
Thus, as Ms. Barker stated in a letter of the same date, "EKCC could not locate an August lab report or records to indicate that blood had been drawn in August." Additionally, she stated that "EKCC acknowledges a delay in sending the written response for the August 2012 record."
In light of EKCC's admission, we find that the facility committed a procedural violation of KRS 197.025(7), which requires that a substantive response to an inmate's request for records be made within five business days. A public agency cannot afford a requester access to a record that it does not have or that does not exist, 99-ORD-98, and the agency discharges its substantive duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Procedurally, however, it is "incumbent on the [agency] to so state in clear and direct terms," 01-ORD-38, and "a written response that does not clearly so state is deficient." 12-ORD-162 (emphasis omitted) (quoting 02-ORD-144). Therefore, EKCC committed a procedural violation by not timely addressing Mr. Phillips' request for lab reports from August 2012.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such records existed. Cf. Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). Accordingly, we conclude that the EKCC did not substantively violate the Open Records Act in its response to Mr. Richardson'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 proceedings.
Distributed to:
Mr. Donald R. Phillips, # 149748Ms. Pam CantrellAmy V. Barker, Esq.