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 Northpoint Training Center ("NTC") violated the Open Records Act in the disposition of inmate Johnny Phillips' June 17, 2015, request for records from NTC's medical department that related to him. For the reasons that follow, we find no substantive violation of the Act.
Mr. Phillips' request, addressed to the NTC Medical Department and received on June 18, 2015, asked for the following:
1) Complete copy of all psych medical records, including notes, memorandum, emails between medical Dept and any/all DOC officials, either in Central Office medical Dept, NTC or CCS; 2) copies of all emails between DOC/NTC staff to or from any/all CCS employee's [ sic ] regarding me or my medical care/ housing needs, including all to other outside agencies and/or medical intities [ sic ].
On June 24, 2015, Tammy Pittman of the NTC Medical Department replied that Mr. Phillips did not have sufficient funds in his inmate account to pay for copies of his 42 pages of mental health records, but could resubmit his request later or make an appointment to view the records. She added:
[S]ome items such as "notes, memorandum, emails between medical Dept and any/all DOC officials, either in Central Office medical Dept, NTC or CCS" and "copies of all emails between DOC/NTC staff to or from any/all CCS employee's regarding me or my medical care/ housing needs, including all to other outside agencies and/or medical intities" [sic] are not included in your medical file; therefore, they cannot be provided.
Mr. Phillips' appeal to the Attorney General was received in this office on July 1, 2015.
On July 27, 2015, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of NTC. She indicates that Mr. Phillips' inmate account has since been replenished and copies of the mental health records were offered to him on July 20, 2015, upon payment of copying fees. Although Mr. Phillips argues that he should receive his medical records free of charge under KRS 422.317, subsection (2) of that statute 1 provides that the Department of Corrections is not considered a "health care provider" for purposes of that section. The fact that NTC contracts for onsite medical services does not alter the status of inmate medical records as public records of the Department. Accordingly, we consider this appeal moot with regard to the medical records. 04-ORD-046; 03-ORD-087; OAG 91-140.
With regard to the request for notes, memoranda, and e-mails, the June 24 response that the records could not be provided because they were "not in [Mr. Phillips'] medical file" was inappropriate. KRS 61.872(4) provides that "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " Therefore, under ordinary circumstances, if Ms. Pittman did not have access to the requested records, she should have informed Mr. Phillips of the proper custodian. On the other hand, if she did serve as custodian of the requested records, a search should have been conducted to determine the number of pages, as was done in the case of the medical records. 10-ORD-137.
In this case, however, the procedural violation is somewhat mitigated by the fact that Mr. Phillips was known not to have sufficient funds in his inmate account at that moment to pay the total copying charges for the request. See, e.g. , 08-ORD-044 (correctional facility may decline to provide copies to inmates without prepayment of copying charges). Moreover, in response to this appeal, NTC has conducted what appears to be a diligent search and has located two responsive e-mails, which Ms. Barker indicates have been offered to Mr. Phillips subject to payment.
Some additional e-mails that would be responsive to Mr. Phillips' request have reportedly already been provided to him in response to previous requests. Ms. Barker correctly argues that with regard to any duplicate requests, Mr. Phillips has not articulated a justification for requesting them again. An agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." 95-ORD-47.
Other than those duplicative e-mails, Ms. Barker reports that no further responsive records were found. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Therefore, we find no substantive violation of the Open Records Act.
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.
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