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 a records request. Lee Burnett, an inmate formerly housed at Kentucky State Reformatory and now housed at Luther Luckett Correctional Complex, appeals KSR's denial of his request for a copy of the results of a May 16, 2002, medical/psychological examination conducted at the expense of the Social Security Administration for purposes of evaluating his eligibility for supplemental security income that somehow found their way into his inmate medical file. Although KSR did not refute Mr. Burnett's statement that he was permitted to review the examination results on September 13, 2002, it denied him a copy of the results on the basis of KRS 61.878(1)(j) asserting that "the documentation contains opinions and recommendations. " For the reasons that follow, we find that Mr. Burnett is entitled to a copy of the record he seeks.
In supplemental correspondence directed to this office following commencement of Mr. Burnett's appeal, Department of Corrections General Counsel Stephen P. Durham amplified on KSR's position. Mr. Durham did not refute Mr. Burnett's statement that he was allowed to inspect the record on September 13, but otherwise explained:
When this request was received and the document was located it was reviewed by Phil Johnson, Phd., staff psychologist for the Kentucky State Reformatory. He reviewed the request because the document is a mental health document. The document is a mental status evaluation prepared by the Department of Disability Determinations. It contains information under the following sections:
The multipage document was denied in whole because it contains impressions, opinions and recommendations.
Mr. Durham acknowledged that "parts of the document (BACKGROUND INFORMATION AND RELATED MATTERS) contains patient history as related by [Mr. Burnett] and a statement of the tests and techniques used (TESTS AND TECHNIQUES UTILIZED) do not contain solely impressions, opinions or recommendations. " He therefore recommended "that the document . . . be examined again by the institution and those portions that do not fall within the cited exemption be made available to [Mr. Burnett]." It does not appear that this was done, Mr. Burnett having contacted us as recently as October 30, 2002, to advise that he is still awaiting receipt of the record and asserting his right to an unredacted copy thereof.
On several occasions this office has held that, "[r]efusal to supply a copy of a record, after inspection has been permitted, is an action inconsistent with KRS 61.874(1)." OAG 89-40, p. 3; OAG 92-30; 94-ORD-47; 94-ORD-104; 94-ORD-113; 98-ORD-8. KRS 61.874(1) provides:
Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
In construing this provision, the Attorney General has observed:
It is abundantly clear from the language of this statute that one having inspected records is entitled to copies of them upon payment of a reasonable fee. [Footnote omitted.] That fee must not exceed the actual cost of copying, and may not include the cost of staff required. The right to copies of public records is thus correlative to the right to inspect those records. Accordingly, a public agency cannot on the one hand release public records for inspection by a requester, and on the other hand deny the requester the right to copy these records. See, e.g., OAG 89-27; OAG 89-43; OAG 89-66. The public records are either available for inspection and copying, or, under one or more of the exceptions codified at KRS 61.878(1)(a) through [(l)], they are not.
94-ORD-47, p. 3. On the basis of these authorities, we conclude that KSR is required by KRS 61.874(1) to supply Mr. Burnett with copies of the record he had already been permitted to inspect.
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 West Highway 146LaGrange, KY 40032
Vanessa ChavezCustodian of RecordsKentucky State Reformatory3001 West Highway 146LaGrange, KY 40032
Stephen DurhamKentucky Department of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400