Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in its disposition of inmate Uriah Pasha's open records requests for hearing test results and notes. For the reasons stated below, we find that NTC did not violate the Act.
In his request, Mr. Pasha ("Appellant") requested a copy of the test results and progress notes from a hearing test he was given on October 5, 2018. The request was dated October 5, 2018, the same day as the hearing test was administered. The request was received by the NTC Open Records Coordinator on Monday, October 8. NTC had five calendar days, excepting Saturdays, Sundays, and legal holidays to respond (pursuant to KRS 197.025(7)). NTC timely responded on October 12, stating that the Department of Corrections did not have responsive records. The response advised Appellant that the most recent audiology results in his records were from August 30, 2018. The response also stated:
Please be aware that the release of any mental health records requires the approval of this facility's Psychologist and Warden; therefore, any mental health records requests will take longer to process.
Appellant filed an appeal claiming that NTC had confused his request for audiology records with a request for mental health records.
On appeal, Amy V. Barker, Deputy General Counsel, Justice and Public Safety Cabinet, provided an email from Tammy Pittman, NTC Medical Department, in which Ms. Pittman explained that the audiology test results and progress notes for the October 5 hearing evaluation had not been received by NTC at the time of Appellant's request. Ms. Pittman stated that, while the hearing tests are done on-site, "the findings are forward to Audicus where they are resulted. The results are then sent to our Medical Department, reviewed by our on-site Provider, then scanned into the patient's chart. Those results were scanned into [Appellant's] chart on 10/17/18 so if [Appellant] would like a copy, he may submit a new open records request." NTC thus did not have the requested records at the time of the request and response. Regarding the statement about mental health records in the written response to the open records request, Ms. Pittman stated that "I often include the information about mental health records when giving information about a viewing appointment which I had offered as an option for Mr. Pasha on 10/12/18."
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. NTC discharged its duty under the Act by advising Appellant that there was no public record maintained by the Department of Corrections responsive to his request of October 5, 2018. NTC advised Appellant that the requested records are available should he make a new request.
The statement about mental health records in the letter responding to the request for hearing test results may have been confusing to Appellant, but did not constitute a violation of the Open Records Act. Ms. Pittman's explanation of the purpose of that statement should clarify any misunderstandings of Appellant in that regard.
We find no violation of the Open Records Act by NTC in its disposition of Appellant's records 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 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.