Opinion
Opinion By: Andy Beshear,Attorney General,Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory ("KSR") violated the Open Records Act in the disposition of Anthony Baker's February 18, 2019, request for a copy of his medical records. Based upon the following, this office finds that KSR did not violate the Act in denying access to nonexistent records; nor did KSR violate the Act in denying the request as to any existing documents that do not contain a specific reference to Mr. Baker. Inasmuch as KSR provided Mr. Baker with an opportunity to inspect all of the remaining documents responsive to his request, any related issues are moot per 40 KAR 1:030 Section 6.
Mr. Baker attached to his "Department of Corrections Request to View/Obtain Health Information" a copy of his "Request to Inspect Public Records Form," wherein he specifically asked for the following:
Any/all documents regarding the scheduling of past 'Transgender Committee' meetings with me, or referrals to same, diagnoses or evaluation materials for same, as well as all of the same regarding Therapeutic Levels utilized by the TLCC, also the criteria utilized during my case review by TLCC, this includes all emails text[s], iPhone messages, memorandums or the like from any/all doctors or staff involved, including [ten named individuals], such material which may relate to the [alleged] gender dysphoria or transgender evaluation by any doctors, Committee(s), etc.
In his March 3, 2019, letter of appeal, Mr. Baker stated that he submitted his February 18 request on that date, but had not received any response. He further asserted that he filed the request with KSR "via the Inmate Legal Mailing System, and such filing is documented within the log for that date." Accordingly, he maintained that no question exists regarding whether KSR received the request. He did not provide any supporting documentation. This office cannot resolve a factual dispute regarding the actual delivery and receipt of a request. However, based upon the following, this office affirms the agency's ultimate disposition of Mr. Baker's request.
Upon receiving notification of Mr. Baker's appeal, Assistant General Counsel Amy V. Barker, Department of Corrections ("DOC") responded on behalf of KSR. She first noted that KSR has five working days, excluding weekends and holidays, in which to issue a written response per KRS 197.025(7). She included a date-stamped copy of Mr. Baker's request, indicating that the KSR Medical Records Department received it on March 5 and mailed a timely written response per KRS 197.025(7) on March 8. In the March 8 letter, Medical Records Custodian Marlene Powell advised Mr. Baker that she was returning the form to him because "no documents exist in your medical records that correspond to the description you provided." Citing prior decisions of this office, Ms. Powell stated that a public agency such as KSR cannot provide nonexistent records for inspection or copying, but discharges its duty under the Act in affirmatively so indicating. She further stated that she would schedule an appointment for Mr. Baker to view his medical records upon request. Ms. Barker clarified that Ms. Powell only responded to Mr. Baker's "Request to View/Obtain Health Information" because that is the kind of request handled by the Medical Records Custodian per DOC policy and procedure, specifically, CPP 6.1.I.B. and II.A. 1 Because Mr. Baker "does not have a diagnosis involving his identifying as transgender, " the Medical Department did not possess any responsive documents.
This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning the actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-204; 18-ORD-006. The Attorney General has recognized that "this office is not equipped to resolve factual dispute [s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3; 14-ORD-132. As in these decisions, the conflicting record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Baker's February 18, 2019, request for this office to conclusively resolve the related factual dispute. The record lacks any basis to question the veracity of KSR or conclusively refute its position that his request was not received until March 5. See CPP 6.1, II.B. In the absence of any irrefutable proof that KSR actually received Mr. Baker's February 18 request prior to March 5, this office is unable to determine that KSR procedurally violated the Act by failing to issue a written response within five working days per KRS 197.025(7). Rather, the record indicates that KSR issued a timely written response on March 8, only three working days following receipt of the request on March 5.
On appeal, Ms. Barker stated that Mr. Baker's appeal was both premature and unperfected, citing KRS 61.880(2)(a) and 40 KAR 1:030 Section 1. KRS 61.880(2)(a) establishes the requirements and timeline for an Open Records Appeal. That statute provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
In sum, the written request and the agency's written response, if any, comprise the record upon which the Attorney General relies in reviewing the actions of a public agency. Thus, 40 KAR 1:030, Section 1 provides that "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial."
Mr. Baker is an inmate confined in a penal facility, and KRS 197.025(3) therefore requires him to "challenge any denial of an open records request with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty days of the denial pursuant to the procedures set out in KRS 61.880(2) . . . ." While this provision narrows the window of opportunity in which an inmate may appeal the disposition of his request by DOC or a correctional facility under its jurisdiction, such as KSR, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 11-ORD-073, p. 3. If Mr. Baker failed to do so, his appeal is both premature and unperfected as to his request for medical records. See 18-ORD-150.
However, KSR is unclear as to what happened to the other form attached to Mr. Baker's request for medical records. Ms. Barker stated that KSR did not receive it until March 11, when the Open Records Coordinator received Mr. Baker's appeal. KSR staff reviewed the legal mail logs but did not find any record of receiving the request as Mr. Baker indicated. By letter dated March 15, 2019, Offender Information Specialist Kasey Schank first advised Mr. Baker that she had "searched every outgoing legal log from 1/1/19 through 3/11/19 and there is no legal log with your name showing that you sent anything to the KSR Records Department." Ms. Schank stated that she forwarded his request for "scheduling of past transgender committee meetings, diagnoses, evaluation materials, therapeutic levels utilized by TLCC [sic], and the criteria used" during his case review to the Medical Records Department because the Records Department does not have access to an inmate's medical file. With regard to e-mails, messages, memoranda, etc. from multiple staff members, KSR granted the request except for e-mails from Dr. Wiggins, who no longer works at KSR or has a DOC e-mail account; KSR also noted that no "UA Turner" exists. KSR further stated that no e-mails from "King, K. Campbell, Valentine, or Craig-Kraemer" exist. Notwithstanding the factual ambiguity regarding the location of the request, KSR is not required or able to provide Mr. Baker with access to nonexistent records.
On March 21, 2019, KSR afforded Mr. Baker the opportunity to inspect all existing responsive documents. Ms. Barker correctly stated on appeal that any issues relating to documents that Mr. Baker was permitted to inspect have been rendered moot per 40 KAR 1:030 Section 6. See 03-ORD-087. She further explained that, upon closer scrutiny, KSR determined that no such entity as the "TL CC " exists; records involving "TL OC " are not maintained at KSR, but are "instead maintained by the Health Services Division office." (Emphasis added.) The Division reviewed its records and located a TLOC meeting note pertaining to Mr. Baker, which Ms. Barker mailed to him as part of her appeal response. Citing KRS 61.878(1)(l) and 197.025(2), Ms. Barker explained that KSR did not provide notes pertaining to different inmates because those records did not contain a specific reference to Mr. Baker. Lastly, Ms. Barker indicated that a memorandum specifically referencing Mr. Baker, which appears to be responsive, is being provided. She also explained, "The medical staff person who scheduled that committee no longer works at KSR and the committee is no longer meeting at KSR." Reiterating her prior arguments regarding KRS 197.025(2), mootness, and nonexistent records, Ms. Barker stated that KSR has not located any other existing records that specifically reference Mr. Baker.
The right of inspection attaches only if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record[s] exist[]," but a public agency discharges its duty under the Open Records Act in affirmatively indicating that no such records exist, or advising that it lacks possession and explaining why, as KSR ultimately did here. 13-ORD-052, p. 3. Under the circumstances presented, our duty under KRS 61.880(2)(a) is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, 2 the Act only regulates public access to records that currently exist and that are in the possession or custody of the public agency to which the request is directed. However, a public agency must explain the nonexistence of the records or its lack of possession if appropriate. See KRS 61.880(1) and 61.880(2)(c); Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 11-ORD-074. When, as in this case, a public agency denies that any responsive documents exist in the possession or custody of the agency, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-ORD-137; 15-ORD-046. KSR cannot produce that which it does not have nor is KSR required to "prove a negative" in order to refute a claim that certain records exist in the possession or custody of the agency in the absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette Urban Cty. Gov't, 172 S.W.3d 333, 340-341 (Ky. 2005); 11-ORD-037.
In denying Mr. Baker' request as to records, including e-mails, that lack a specific reference to him, KSR correctly relied upon KRS 197.025(2), incorporated into the Act by operation of KRS 61.878(1)(l), in support of its position. 3 The Attorney General has consistently recognized that KRS 197.025(2) expressly authorizes correctional facilities like KSR to deny a request by any inmate unless the record(s) contains a specific reference to that inmate. See 08-ORD-008; 10-ORD-216. Because any remaining documents at issue do not contain a specific reference to Mr. Baker, as required by the language of KRS 197.025(2), he is not entitled to inspect such records, or to receive copies thereof, notwithstanding any underlying concerns that he may have. See 99-ORD-161, p. 2; 17-ORD-054. Based upon the foregoing, this office affirms the disposition of Mr. Baker's request.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 In 04-ORD-004, this office expressly upheld the validity of CPP 6.1. More specifically, the Attorney General affirmed the denial of the inmate's request due to his failure to provide the inmate identification information required by CPP 6.1, holding the denial was "proper and consistent with its policies and procedures relating to inmate open records requests," as well as KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 04-ORD-004, p. 3. Likewise, in 08-ORD-044, this office upheld CPP 6.1(2)B.4. (requiring inmate requesters to complete an Authorization to Use Inmate Account Form). See 05-ORD-228; 06-ORD-078; 08-ORD-157; 08-ORD-213; 09-ORD-069; 11-ORD-119. Inasmuch as the challenged policy "does not interfere, or threaten to interfere, with [Mr. Baker's] statutory right of access to nonexempt public records," and is consistent with provisions of the Open Records Act, this office finds that KSR did not violate the Act by requiring compliance with it[.]" 11-ORD-119, p. 4; 12-ORD-117 (holding inmate requester was not denied access to records but instead was required to "adhere to policies that did not 'amend, alter, enlarge, or limit the terms of the Open Records Act,'" quoting Com. v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) ).
2 See KRS 61.8715.
3 KRS 197.025(2) provides:
KRS 61.870 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.