Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act by denying access to nonexistent medical records and by denying access to medical records of other inmates, should they exist. We find that KSP did not violate the Open Records Act by denying access to the requested records.
Leonel Martinez, an inmate in the Kentucky State Penitentiary, on July 22, 2016, requested "[u]se of ten 1 unit records on KSP. I need the record the show when KSP medical has purchased and allow inmates to use ten units at KSP medical date time year [sic]." By memorandum dated July 25, 2016, Mary Godfrey, Office Support Assistant II, Medical Department, timely answered Mr. Martinez's request by stating that "I have researched your medical file. There is no document that show [sic] KSP medical has purchased and allow [sic] inmates to use ten units at KSP medical, date, time, year." The letter went on to state:
In accordance with KRS 61.872(5) you are notified that the requested document does not exist. Consistent with 93-ORD-134 a public agency cannot afford a requestor access to records which does not exist. Likewise the agency discharges its duties under the open records act by affirmatively so stating; 99-ORD-150 [sic].
In his appeal, Mr. Martinez averred that he had been prescribed a "[TENS] unit for my back pain..." by KSR (Kentucky State Reformatory) in 2009 but that he had been transferred to KSP on April 22, 2010, and that "KSP medical took my [TENS] unit." Mr. Leonel further alleged that he had filed a lawsuit challenging the taking of his TENS unit and further alleged that KSP had explained they took the device because such a unit was not allowed to be used in a maximum security prison. Mr. Leonel explained that his July 22nd request was for records [showing that] KSP Medical purchased and allowed other inmates to use [TENS] units at KSP. Mr. Leonel's appeal alleged that he wanted his records, and records of other inmates, to show that KSP was discriminating against him because other inmates had been allowed the use of TENS units.
On behalf of KSP, Catherine M. Stevens, staff attorney for the Justice and Public Safety Cabinet, responded to Mr. Martinez's appeal by letter dated August 10, 2016. In reference to the initial response by Mary Godfrey, Ms. Stevens reiterated that KSP cannot provide a record that does not exist. KRS 61.870(2) is the statute that defines "public record," in relevant part, as records that are "prepared, owned, used, in the possession of or retained by a public agency. " When an agency cannot produce a record, the complaining party must make a prima facie showing that such records do exist. See
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); 07-ORD-188. Mr. Martinez has not made the prima facie showing that the requested record (pertaining to him) exists. Mary Godfrey researched Mr. Martinez's medical file and her response to Mr. Martinez was that there is no responsive record in his file. The record of this appeal does not demonstrate that a record pertaining to Mr. Martinez exists and therefore KSP did not violate the Open Records Act in not providing the requested record pertaining to him.
In regards to Mr. Martinez's request for medical records of other inmates who may have been prescribed use of TENS units, Ms. Stevens further explained that KRS 197.025(2) expressly authorizes correctional facilities to deny a request by an inmate unless the record(s) contains a specific reference to that inmate, and that medical purchases for other inmates are not records that would contain a specific reference to Mr. Martinez. Ms. Stevens referenced KRS 197.025(2) as an exclusion to the Open Records law incorporated through KRS 61.878(1)(l). In 2002, the General Assembly amended KRS 197.025(2) and narrowed the scope of public records available to inmates by stipulating that correctional facilities and jails must disclose only those records containing "a specific reference" to the requesting inmate. To this extent, the identity of the requester is directly relevant and inmates no longer have "the same right to inspect public records as any other person" as a result of the amendments to KRS 197.025(2), at least with respect to records in the custody of facilities such as KSP. 04-ORD-076, p. 4. Because the medical records of other inmates do not contain a "specific reference" to Mr. Martinez, we conclude that KSP properly invoked KRS 197.025(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), in denying his request as to those records.
Either party may appeal this decision 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 must 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 A TENS (Transcutaneous electrical nerve stimulation) unit is a medical device that uses electric current to stimulate the nerves for therapeutic purposes. The references to a "10" or "ten" unit are to this type of medical device.