Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Michael Whitehead initiated this appeal challenging the denial by Blackburn Correctional Complex (BCC) of his request dated December 17, 2014, for "a summary of any and all encounters" contained in his medical records, including the dates of any visits, procedures, follow-up appointments, or "any other treatment that was rendered by your facility/office," and specifically any "diagnosis/prognosis notes,""results from an MMPI/PAI that was discussed on 12/05/2104 with Ms. Andrea Becker and Alex Kuhn to include statistical analysis of those tests," and "[c]opies of any advance directives, sick call slips, history and physical, progress notes, etc." 1 By undated letter, which Mr. Whitehead received on December 23, 2014, 2 Kristy Gamble, BCC Medical Department, denied Mr. Whitehead's request because his inmate account lacked sufficient funds to pay for the copies per KRS 61.874(1). However, BCC advised Mr. Whitehead that he was entitled to inspect said records under KRS 61.872(1) and could resubmit his request for copies when his account contained sufficient funds.
Upon receiving notification of Mr. Whitehead's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of BCC. Having noted that issues regarding Mr. Whitehead's request made under KRS 422.317 (providing that upon written request by a patient a hospital licensed under KRS Chapter 216B or a health care provider shall provide, without charging the patient, one copy of the patient's medical record) should not be considered here, 3 Ms. Barker asserted that BCC is entitled to require payment before providing the requested copies in response to either of the requests pursuant to KRS 61.874(1). Citing Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985) and prior decisions of this office, including 08-ORD-044 (upholding DOC policy requiring advance payment for copies because it was consistent with KRS 61.874(1)) and 08-ORD-096 (adopting 08-ORD-044 in affirming denial of inmate request for medical records because his account lacked sufficient funds to pay for copies), Ms. Barker correctly argued that a public agency does not violate the Open Records Act in requiring advance payment for copies.
"When copies are requested, the custodian may require a written request and advance payment of the prescribed fee."KRS 61.874(1). The courts and this office have both recognized the propriety of a DOC policy requiring advance payment of copying fees. In Friend v. Rees , above, the Kentucky Court of Appeals held that an inmate is entitled to receive a copy of a record only after "complying with the reasonable charge of reproduction. "Accordingly, the Attorney General subsequently determined that it is "entirely proper for [a correctional] facility to require prepayment and to enforce its standard policy relative to assessment of charges to inmate accounts . . . ."95-ORD-105, p. 3; 08-ORD-044; 09-ORD-088. While acknowledging "this prepayment policy might work a hardship on inmates, " the Attorney General has nevertheless upheld the policy as "consistent with the Open Records Act and the rule announced in Friend v. Rees , [above]." 97-ORD-131, p. 3; 09-ORD-071. The instant appeal presents no reason to depart from governing precedents; accordingly, this office finds that BCC did not violate the Open Records Act in declining to provide Mr. Whitehead with copies of his medical records given his inability to pay for the requested copies in advance. See 06-ORD-030; 08-ORD-096. Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 Prior to submitting his "Request to Inspect Public Records KRS 61.870 - 61.884," dated December 17, 2014 (submitted on December 22) Mr. Whitehead directed a separate request to "Medical Department" on December 17, "pursuant to Kentucky Revised Statutes 422.317."Mr. Whitehead acknowledged on appeal that his initial request "was specifically not an open records request[.]"BBC correctly observed in response that Mr. Whitehead seemed to argue that he is entitled to a free copy of his medical records from Correct Care Solutions (CCS), which provides medical services to inmates under contract with the Department of Corrections (DOC), because CCS is not a "public agency" subject to the Open Records Act. He further objected that inmates are being treated differently than individuals who are not incarcerated. As BCC also correctly asserted, such issues cannot be resolved in this forum as only alleged violations of the Open Records Act can be properly considered in appeals initiated under KRS 61.880(2). See 99-ORD-121; 08-ORD-142; 09-ORD-071.
2 On appeal Mr. Whitehead acknowledged the he actually "dropped it in the institutional mail system" on December 22, 2014; the BCC Records Office stamped the request as received on that day and Mr. Whitehead apparently received its response on December 23.
3 In relevant part, KRS 422.317 provides:
(2) The Department of Corrections shall not be considered as a health care provider under this section; however, the department may make medical records of an individual inmate available to that individual inmate unless the department, through its designee, determines that the provision of the record is subject to the provisions of KRS 197.025.
(Emphasis added.)