Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in its response to the Open Records Request submitted by inmate Curtis Moorman. For the reasons stated below, we find that KSP did not violate the Act.
On September 28, 2017, KSP received an open records request from Mr. Moorman seeking documents from his medical records. On October 5, Mr. Moorman received two responses. Administrative Assistant Melissa Edmonds issued a response on behalf of the medical office. She informed Mr. Moorman that an extension of time was necessary. Her response stated "[d]ue to the document, [ Sic ] you are requesting a signed release must be issued." She also explained that "[t]he release cannot be signed until staff are present at the facility." Ms. Edmonds stated that the request would require at least five more business days to process. Mr. Moorman received a separate response from KSP Open Records Coordinator Catherine Weicht. She informed him that KSP "will require additional time to retrieve and review the records you request" and a final response would issue on or before October 13, 2017.
On October 12, 2017, KSP issued a final response to the open records request. KSP provided Mr. Moorman with documents described in four of his requests. However, KSP stated that three of the requested documents do not exist. Mr. Moorman had described those three documents in his open records request as follows:
1. "A copy of medical memorandum telling 7C/H nurses to check my vitals weekly; "
2. "A copy of the segregation intake medical screening on the date of 6-29-17;"
3. "A copy of the sick call to see the eye dr [ Sic ] on or about 7/17/17."
KSP stated for each document that "[i]n accordance with KRS 61.872(5) 1 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 [ Sic ] not exist. Likewise the agency discharges its duties under the open records act by affirmatively so stating; 99-ORD-150."
Mr. Moorman filed an appeal with this office on October 20, 2017. He seeks review of the denial of the medical memorandum regarding weekly vitals checks and the June 29, 2017 segregation intake screening. Mr. Moorman also requested review of the delay in producing records. He alleges a procedural violation and states "the extension of time requested by the records clerk and medical assistant were fallacious and used to conceal intent."
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of KSP. Ms. Barker explained that medical directors are procedurally required to review and sign healthcare records prior to release. Ms. Barker attached an email message from Ms. Edmonds, in which she explains how the policy caused a delay in the release of these medical records. Ms. Edmonds states:
"In addition, I had to send an extension of time on this particular open records request because approval of the psychologist must be obtained before releasing mental health records requested for security reasons. I have attached the extension. The psychologist is not on site and the review and signature takes several days to be received. The money authorization has to be processed for all of the records at once so the couple of pages available that were not mental health records could not be paid for until the psychologist approval was received."
Ms. Edmonds describes her effort to locate the two omitted documents. She explains that the segregation intake screening was not created "due to the fact we do not conduct an intake assessment unless they are coming into the institution from another facility." She states that a "lock up assessment" may be completed when an inmate is admitted into Restrictive Housing, but an intake assessment is not created. Regarding the medical memorandum, Ms. Edmonds explains that she contacted the Warden's Office to find a memorandum telling 7C/H nurses to do weekly vitals checks. With the assistance of Administrative Specialist III Stacey L. Gibson, she was able to verify that the Warden's office had not issued a memorandum.
KSP fulfilled its obligations under the Open Records Act by conducting a good faith search reasonably calculated to produce all responsive record. 95-ORD-96. The medical office and the Warden's office reviewed existing records and verified that the documents do not exist. Ms. Edmonds was also able to verify that, according to institutional policy, the June 29, 2017 intake screening would not exist. A public agency cannot afford a requester access to records which it does not have, or which do not exist. 17-ORD-018; 99-ORD-098; 93-ORD-134. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150. We find that KSP did not violate the substantive requirements of the Open Records Act.
Addressing the procedural issues raised by Mr. Moorman, we find that KSP complied with the requirements of the Open Records Act. KRS 61.872(5) 2 allows an extension of time for a response, but requires the official custodian to issue a detailed explanation of the cause for delay and state the place, time and earliest date on which the record will be available for inspection. Regarding the detailed explanation, Ms. Edmonds informed Mr. Moorman that a signed release was necessary to permit release of the type of records he requested. A medical director must conduct the review because correctional staff members do not have the training to recognize protected information. Under these facts, where the records were undergoing the procedurally required review of the medical director, we conclude that the delay was warranted. We find that the grounds for extending the time to respond to the open records request were procedurally valid.
The responses to Mr. Moorman's records requests also met the time requirement of KRS 61.872(5). Ms. Edmonds and Ms. Weicht issued the initial responses to Mr. Moorman on October 5, which was within the period allowed by KRS 197.025(7) 3. The agency properly extended the time for a final response by following KRS 61.872(5) and providing notice of the place, time, and earliest date on which the record will be available for inspection. Ms. Edmonds informed Mr. Moorman that the review and signature of the medical director would require at least five business days. Ms. Weicht's letter specifically stated that October 13, 2017 was the time necessary to retrieve and review the records. We find that the KSP custodians followed the proper procedures and issued a timely open records response.
Either party aggrieved by this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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