Opinion
Opinion By: Albert B. Chandler III,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory violated the Open Records Act in the disposition of inmate Lee Burnett's July 24, 2002, request for the "May 3, 2002, consultation request from Dr. Lanter's visit." For the reasons that follow, we find that KSR did not violate the Act in denying Mr. Burnett's request, insofar as it cannot make available for inspection a record that cannot be located, but that its apparent failure to effectively manage Mr. Burnett's inmate medical file raises issues that might be appropriate for review by the Kentucky Department for Libraries and Archives under authority of KRS 61.8715, recognizing "an essential relationship between the intent of [the Open Records Act] " and Chapter 171 of the Kentucky Revised Statutes, relating to records management.
In denying Mr. Burnett's request, Open Records Coordinator Vanessa Chavez indicated that she had repeatedly viewed [his] chart and [could] not locate a consult for May 3, 2002." Shortly thereafter, Mr. Burnett initiated this appeal stating in an affidavit that he had previously reviewed his medical file and "included in the record . . . was a consultation request from Dr. Abdul G. Burridi to Dr. James Lanter . . . dated May 3, 2002 [and stating that he] was to have x-rays at KSR and return to Lanter's office in two weeks (May 17)." He provided this office with a copy of the grievance he filed on July 16, 2002, concerning KSR's failure to follow Dr. Lanter's orders and KSR's response thereto, and expressed the belief that the record "is being purposely withheld because it is evidence of negligence and deliberate indifference of the medical staff." 1
In supplemental correspondence directed to this office following commencement of Mr. Burnett's appeal, Department of Corrections General Counsel Stephen P. Durham elaborated on KSR's position. 2 By letter dated August 16, Mr. Durham advised:
Upon receiving this appeal from your office, I spoke with Cynthia Cox, RHIT, Medical Records Administrator for the Reformatory. Ms. Cox conducted a thorough review of Inmate Burnett's medical file records upon my request. She confirms Inmate Burnett's assertion that he viewed his file records on May 8, 2002. She located a document that she thought may be the document requested by Inmate Burnett. The May 3, 2002 consultation request from Dr. Lanter's visit was missed filed [sic] under x-rays. However Ms. Cox had subsequently learned that the record was in the file and viewed by Inmate Burnett.
Ms. Cox further advised that she allowed a viewing of the medical records with Mr. Burnett for Monday, August 12, at 1 p.m. At that time, Mr. Burnett was allowed thirty (30) minutes to view his records in accordance with institutional policies and procedures. Nothing suggests that the document was purposely withheld from Mr. Burnett. He just asserts that he wants a copy of a record that is not in the possession of the institution. 3 This should resolve the dispute that is the subject matter of this appeal.
In letters dated August 12 and August 15, Mr. Burnett acknowledged that he was permitted to review his medical file, but asserted that the "document found under the x-ray section of the medical record was NOT a consultation request, but rather a report from Dr. Lanter's office." He also acknowledged that two different records were provided to him, but that "neither of these documents were the consultation request from [his] May 3, 2002, appointment with Dr. Lanter." On August 21, 2002, Mr. Burnett provided this office with copies of consultation requests, obtained from his medical file, for October 26, 2001, April 12, 2002, April 18, 2002, and July 10, 2002. All are on preprinted forms, and all but one, the July 10 consultation request, are captioned "Consultation Request." Mr. Burnett also provided us with the May 3, 2002, typewritten notes apparently dictated by Dr. Lanter, and misfiled under x-rays, but bearing no resemblance whatsoever to the preprinted consultation requests. He reiterated that he personally reviewed the May 3, 2002, consultation request while inspecting his medical file on May 8, 2002, and again questioned what became of it.
While the records access dispute that is the subject of this appeal was resolved when KSR determined that it could not provide Mr. Burnett with a copy of a record that is not in the institution's possession, we do not agree with KSR that the dispute was otherwise resolved in full. Instead, we find that by virtue of KRS 61.8715, recognizing "an essential relationship between the intent of [the Open Records Act] " and statute relating to records management, the Department for Libraries and Archives may be warranted in conducting additional inquiry into KSR's records management policies.
KSR does not assert that the record identified in Mr. Burnett's request is not a public record for purposes of the Open Records Act. 4 Nor does KSR rely on any of the exceptions to the Open Records Act, codified at KRS 61.878(1)(a) through (l), in denying the request. Instead, KSR states that the record "is not in the possession of the institution." Obviously, KSR cannot furnish Mr. Burnett with a record that, for whatever reason, is no longer in its possession. See OAG 87-54; OAG 88-5; OAG 91-112; 94-ORD-65; 96-ORD-41. Our decisions in open records disputes are generally limited to two questions: Whether the public agency has in its possession the record requested, and if it does, whether the record is subject to inspection. KSR's failure to produce a record that is not in its possession does not constitute a violation of the Open Records Act.
Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. KRS 61.8715 now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Our review of the Records Retention Schedule for the Department of Corrections, Adult Correctional Institutions, the pertinent portion of which is attached, indicates that an inmate medical file, Series No. 04065, is deemed of sufficient importance that it is assigned an indefinite retention period while the inmate is confined, and a twenty year retention period after the inmate is released. The underlying rationale for this lengthy retention period, as set forth in Records Description and Analysis prepared by the Department, is as follows:
Series has primary administrative value because it provides the medical information needed for court should a lawsuit arise over a treatment given at the institution, and for research on inmate medical treatments performed at institutions.
Clearly, a consultation request falls within this scheduled series, and the disappearance of such a record cannot be casually dismissed, particularly where, as here, the issue of adequate medical treatment has been raised. In the absence of any explanation for KSR's inability to produce the May 3, 2002, consultation request which Mr. Burnett seeks, we are obliged to refer this matter to the Department for Libraries and Archives for further review as the Department deems appropriate. 01-ORD-11 (detention center's inability to produce records verifying inmate's dates of incarceration did not constitute a violation of the Open Records Act, since center only maintained inmate records "back to 01-01-1995," but retention schedule for jailers indicate inmate record/folder is a permanent record. Failure to maintain scheduled inmate records that were over five years old was an appropriate matter for review by Department for Libraries and Archives); compare, 01-ORD-36 (correctional complex provided inmate with the only document generated and maintained by the institution that was responsive to his request for internal chain of custody forms and required by corrections policy. Inmate was not entitled to obtain records that were not in institution's custody, nor required to be in its custody by virtue of governing corrections policy, and institution's failure to produce additional records did not warrant review by Department for Libraries and Archives).
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Lee Burnett, # 135170Kentucky State Reformatory3001 W. Hwy. 146LaGrange, KY 40032
Steve DurhamDepartment of Corrections Office of General Counsel2439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Emily DennisDepartment of Corrections Office of General Counsel2439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Vanessa ChavezKentucky State Reformatory3001 West Highway 146LaGrange, KY 40032
Richard Belding, DirectorPublic Records DivisionDepartment for Libraries and Archives300 Coffee Tree RoadP. O. Box 537Frankfort, KY 40601
Footnotes
Footnotes
1 This is not the appropriate forum for review of Mr. Burnett's claim that the consultation request is being "purposely withheld. " KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the Open Records Act. Evidence of willful concealment or destruction of public records, if it exists, must be presented to the local prosecutorial authorities. The Attorney General is not empowered to render a decision on this question.
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2 On August 7, Ms. Chavez notified this office that she had attempted to satisfy Mr. Burnett's request by furnishing him with a copy of his June 3, 2002, consult request, explaining that she had erroneously believed that Mr. Burnett had misidentified the record sought. In addition, she indicated that she had arranged for Mr. Burnett to again review his medical file on August 9 in order to locate the record actually sought.
3 This response was submitted to the Attorney General as a "corrected and modified" version of an earlier response in which the Department advised that Ms. Cox had:
located a document that may be the document requested by Inmate Burnett.
The May 3, 2002, consultation request from Dr. Lanter's visit was missed filed [sic] under x-rays and apparently Ms. Chavez overlooked the document in her review due to the misfiling of the record.
The Department indicated that Mr. Burnett would be afforded yet another opportunity to review his medical file on August 21, concluding that "[n]othing suggests that the document was being purposely withheld from Mr. Burnett," and that the misunderstanding relative to the May 3 consultation request appears to have arisen from a clerical error . . . ."
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4 Although the consultation request is a "public record, " insofar as it is "prepared, owned, used, in the possession of or retained by a public agency, " it is not accessible to the general public. As a medical record, it enjoys protection from disclosure to all but Mr. Burnett as a record containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a).
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