Request By:
Douglas Rank, # 241903
Amanda Carter
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Eastern Kentucky Correctional Complex (EKCC) violated the Open Records Act in its disposition of repeated requests by an inmate for the formulary used by the correctional facility's medical department. For the reasons cited below, we affirm EKCC's denial.
On May 2, 2017, Douglas Rank, an inmate at EKCC, requested a copy of the formulary "used by this medical department and the KDOC showing which medicines for thyroid replacement therapy are 'on formulary. '" Amanda Carter, Medical Records Secretary, timely denied Mr. Rank's request on May 3, 2017, by stating that Mr. Rank was requesting the public agency to "compile specific information" and that a public agency is not obligated to compile a list or create a record to satisfy an open records request. On May 4, 2017, Mr. Rank submitted his request again, clarifying that he was not asking for a compilation, but for "a document that already exists." Ms. Carter responded on May 8, 2017, this time explaining her denial was because the formulary "does not contain a specific reference to you and the records are exempt from disclosure to you under KRS 61.878(1)(l) and KRS 197.025(2)." On May 18, 2017, Mr. Rank again requested the formulary because "this repeat request shows that this information affects me personally. " Ms. Carter again denied the request because Mr. Rank's name was not on the formulary and was therefore exempt from disclosure pursuant to KRS 197.025(2). Mr. Rank appealed these denials by letter dated May 24, 2017, claiming that "It is sufficient for the purposes of open records requests that Rank has been and is personally affected by decisions regarding his medical care at E.K.C.C. which rely upon the formulary. "
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of EKCC by letter dated May 31, 2017. Ms. Barker first explained that Ms. Carter's denial of May 3 was incorrect but that the subsequent denials corrected that error by explaining that the formulary did not contain a specific reference to Mr. Rank. Ms. Barker more fully explained that "a drug formulary is not the type of record in which a specific reference would be made to an inmate, " and cited 08-ORD-271 for the proposition that "KRS 197.025(2) expressly authorizes correctional facilities like [EKCC] to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. " Ms. Barker cited numerous decisions by this office to support EKCC's denial on the basis of KRS 195.025(2).
KRS 197.025(2) provides that "KRS 61.970 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual." (Emphasis added). KRS 197.025(2) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 1 As Ms. Barker argues, and what seems apparent from the nature of document sought, a formulary does not contain a specific reference to Mr. Rank. As stated by Ms. Barker, this office has consistently interpreted this provision as requiring a reference by name. 03-ORD-150; 09-ORD-057. Mr. Rank argues that, because he is "personally affected" by decisions that rely on the formulary, he should be provided a copy of that record. However, as this office has previously determined, simply because a document may be relevant to or pertain to an inmate, if the record does not contain a specific reference to the inmate, the record may be withheld from disclosure pursuant to KRS 197.025(2). See 04-ORD-248. Furthermore, irrespective of the hardship Mr. Rank feels this application of KRS 197.025(2) may impose on him, the clear and plain language of the statute controls. See Id. Accordingly, EKCC did not violate the Open Records Act by denying Mr. Rank's request. 2
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.
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