Request By:
James Adair, # 280873
Ryan Sumpter
Matt Perdue
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Correctional Psychiatric Center ("KCPC") violated the Open Records Act in the disposition of inmate James Adair's open record request for a copy of his medical records. For the reasons stated below, we find that KCPC did not violate the Act.
Mr. Adair purportedly sent a request to KCPC, a maximum-security facility operated by the Department for Behavioral Health, Developmental and Intellectual Disabilities, Cabinet for Health and Family Services, on May 23, 2017, in which he asked the agency ". . . to produce copies of all medical/mental health records in its custody. This includes, but is not limited to, all mental health examinations, reports, and testing procedures." Mr. Adair, having received no response to his request, filed this appeal by letter dated June 13, 2017.
Matthew Perdue, attorney, Cabinet for Health and Family Services, responded to the appeal on June 22, 2017, on behalf of KCPC. Mr. Perdue explained that KCPC had received a waiver (Authorization for Release of Patient Information) from Mr. Adair on May 7, 2017, and had treated the waiver as a request by Mr. Adair for a copy of his medical records possessed by KCPC, even though an actual open records request had not been received. On May 15, 2017, KCPC provided the records it could disclose and informed Mr. Adair by letter 1 that reports generated pursuant to court ordered evaluations for competency and/or criminal responsibility cannot be distributed without violating that court order.
Request not received prior to appeal . Although Mr. Adair provided a copy of a hand-written open records request to KCPC dated May 22, 2017, KCPC claims, according to Mr. Perdue, that it had never received the request until it was provided on appeal. An agency's duty to respond to an open records request is set forth at KRS 61.880(1), which, in pertinent part, provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.
Mr. Perdue's response to the appeal stated that KCPC had not received the appeal prior to receiving it with the notice of Mr. Adair's appeal. In the absence of conclusive proof that KCPC received the request, such as a certified mail receipt and proof of service confirming mail delivery, or a fax cover sheet confirming successful fax transmission, we cannot resolve the factual dispute of whether KCPC received the open records request before it was provided on appeal. Without some evidence that KCPC received Mr. Adair's request, this office is unable to determine that any violation of KRS 61.880(1) occurred by reason of KCPC's lack of response to the initial open records request. 02-ORD-01 (agency cannot be faulted for failure to respond to request where no proof of delivery exists); compare, 09-ORD-060 (agency failed to respond to requests whose delivery was verified by certified mail receipt and fax confirmation sheet).
Records are exempt from disclosure . Mr. Perdue provided this office with a copy of an "Order for In-House Mental Evaluation" from the Mason Circuit Court in Case No. 15-CR-00001. As stated by Mr. Perdue: "That order instructed KCPC to evaluate whether Mr. Adair was competent to stand trial, and whether he was criminally responsible for his behavior. Additionally, the Circuit Court ordered that these evaluations be sealed and distributed to only the court, the prosecutor, and Mr. Adair's counsel."
The Attorney General has dealt with this identical issue on multiple occasions and has followed the reasoning expressed in KCPC's response. In a long line of open records decisions, this office has recognized that a court ordered competency evaluation is:
created at the direction of the court . . . . Although it is a "public record" within the meaning of KRS 61.870(2), because it is a record which is prepared and retained by a public agency, the court's order removes it from the application of the Act. Release of the report to persons other than those identified in the order could expose employees of KCPC to liability or place them in contempt of court.
99-ORD-109, p. 2; 08-ORD-067. This position finds support in KRS 26A.200 2 which provides, in part, that all records which are made by or generated for or received by any agency of the Court of Justice, or by any other court, agency, or officer responsible to the Court, are the property of the Court and are subject to the control of the Supreme Court. Prior open records decisions dealing with court ordered competency evaluations have recognized that KRS 26A.200 is incorporated into the Open Records Act by KRS 61.878(1)(l) 3 . 11-ORD-015, 14-ORD-071, 09-ORD-102, and 09-ORD-147. Records such as the pre-trial competency evaluation at issue in this appeal, enjoy a special status and are placed under the exclusive jurisdiction of the court. KCPC is barred, by the court's order, from providing the competency evaluation to Mr. Adair. We find no error in KCPC's denial of Mr. Adair'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 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 copy of the May 15, 2017, letter was provided by KCPC for our review.
2 KRS 26A.200 states:(1) All records, as defined in KRS 171.410(1), which are made by or generated for or received by any agency of the Court of Justice, or by any other court or agency or officer responsible to such court created under the present Constitution, or a former Constitution, whether pursuant to statute, regulation, court rule, or local ordinance shall be the property of the Court of Justice and are subject to the control of the Supreme Court .(2) The Supreme Court shall determine which records were generated, made, or received by or for any court.(Emphasis added).
3 KRS 61.878(1)(l) authorizes public agencies to withhold: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."