Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether Blackburn Correctional Complex violated the Kentucky Open Records Act in partially denying the request of Freeland Riley for the address of Dr. Jennifer M. Joyce and a copy of specified medical records, including the order from Dr. Steve Shedlofsky discontinuing his Hepatitis C medication. Because the requested address is properly characterized as information that BCC is not obligated to provide rather than a specifically identified public record and the requested medical records have either been disclosed or do not exist, we conclude that BCC complied with the Act in its disposition of Mr. Riley's request.
On a request form dated November 25, 2003, Mr. Riley framed his request to the BCC Medical Department as follows:
I wish to get a copy of the notes that [were] dictated on 11/20/03[.] If you don't have the notes[,] I wish to obtain [the] name [and] address of the doctor [I saw] on 11/20/03 to write to obtain a copy myself. I also wish to obtain [the address of] Jennifer M. Joyce M.D. [] so I can try to obtain notes from 5/22/03. A copy of Dr. Steve Shedlofsky[']s order to D/C Hepatitis C Med.
In her capacity as the Custodian of Medical Records at BCC, Virginia R. Bunning sent the following timely response to Mr. Riley:
A copy of the notes dictated by Dr. Wrightson on Nov. 11, 2003 was received from him at BCC 12/1/03 and is enclosed. With respect to your request for addresses, this is a request for information and the Open Records Law does not obligate a public agency to respond to a request for information. Your request for a copy of your letter and Open Records request is denied pursuant to KRS 61.872(6), as this request is disruptive. 1 A copy of the order to discontinue Hepatitis C medication was sent to you on 9/30/03.
On appeal, Mr. Riley acknowledges receiving "a copy of a D/C of interferon/Ribavirin on 9/30/03 from [the] medical dept.," but contends that "it is not from Dr. Steve Shedlofsky, but it is from [the] Dept. of Corrections signed by Gingy Grider, ARNP, not from the one who put [him] on the Hepatitis [t]reatment. " Although Mr. Riley has only seen Dr. Shedlofsky once, he does "not feel that he would D/C Hepatitis C [t]reatment with the ALT still at 170." According to Mr. Riley, "[a] person should not D/C it without seeing you and reading [the] blood test prior t[o] D/C Hepatitis C Med. " Because he "requested a copy of Dr. Steve Shedlofsky['s] order to D/C the Hepatitis C med. and still [has] nothing saying that Dr. Steve Shedlofsky ordered it to be D/C," Mr. Riley now appeals.
In supplemental correspondence received by this office following commencement of the instant appeal, Emily Dennis confirms the validity of Ms. Binning's position on behalf of the Department of Corrections. In her view, "there are no deficiencies" in Ms. Binning's response. As correctly observed by Ms. Dennis, "[a]ttached to Mr. Riley's letter are forms related to Hepatitis C treatment he has received from the BCC medical records department, including two forms that clearly indicate that medication was discontinued on or about 9/3/03 per Dr. Shedlofsky." Contrary to Mr. Riley's assertion, "there is no separate document that may be characterized as an order from Dr. Shedlofsky" but the "Order" to which Mr. Riley refers is "clearly noted on the documents that Mr. Riley has already received." Relying upon 93-ORD-13, Ms. Dennis emphasizes that the Attorney General has "consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist." Thus, she argues that an agency "discharges its duty under the Open Records Act by affirmatively so stating," citing 99-ORD-150, 03-ORD-077 and 03-ORD-176 as authority. 2
Mr. Riley does not deny receiving the documents in question, emphasizing instead that Dr. Shedlofsky did not sign the "order" contained therein. In his view, the absence of a doctor's signature means that "anyone from the [DOC] can say anything they want without a[n] order to discontinue medication and any doctor will state that the Hepatitis med. should not be D/C without properly doing the bloodwork or the proper blood test. " In other words, Mr. Riley is dissatisfied with the informal procedure adopted by the BCC medical department in this regard and its potential implications rather than its actions relative to this aspect of his open records request. Although his motivation is irrelevant for purposes of our analysis, Mr. Riley also explains that he filed the subject request in an attempt to substantiate his pending federal claim alleging that he was denied proper medical care at BCC. For the following reasons, we find that BCC properly denied Mr. Riley's request for Dr. Joyce's address and fulfilled its obligations under the Act by disclosing the existing records in its possession at the time of Mr. Riley's request thereby rendering the remaining issues moot.
40 KAR 1:030, Section 6 provides:
Moot Complaints. If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
As noted by Ms. Binning, the BCC medical department received a copy of the notes dictated by Dr. Wrightson 3 on November 11, 2003, on December 1, 2003, and was enclosed with her response to Mr. Riley's request of the same date. A copy of the "order" from Dr. Shedlofsky discontinuing Mr. Riley's Hepatitis C medication, to the extent such a document existed, was mailed to Mr. Riley on September 30, 2003. Accordingly, any issue regarding access to these records is moot. See 02-ORD-184. Although Mr. Riley takes issue with the format of the order discontinuing his Hepatitis C medication, this office has consistently recognized that "a public agency cannot afford a requester access to records that it does not have or which do not exist" as correctly observed by Ms. Dennis on appeal. 03-ORD-205, p. 3, citing 93-ORD-134; 03-ORD-176; 00-ORD-83; 99-ORD-150. Pursuant to KRS 61.8715, 4 there may be occasions when the Attorney General requests that an agency substantiate its denial based on the nonexistence of records by demonstrating its efforts to locate the requested records or explaining why no records were generated. 00-ORD-83, supra, p. 6. Since we are aware of no policy requiring a separate order to be generated in this context nor has Mr. Riley demonstrated the existence of such a policy, we do not believe additional inquiry is warranted here. No separate document exists that may be properly characterized as an "order" from Dr. Shedlofsky discontinuing Mr. Riley's Hepatitis C medication. Therefore, it stands to reason that BCC fulfilled its obligation under the Act by disclosing its version of an order, i.e., the forms containing notations intended to accomplish that purpose.
In light of this determination, the remaining question is whether BCC was obligated to provide Mr. Riley with Dr. Joyce's address. As we observed at page 2 of 00-ORD-145, the Open Records Act "addresses requests for records, not requests for information." Standing alone, an address is properly characterized as information in this context. To the extent that Mr. Riley requested information rather than specifically identified records, BCC properly denied his request. Id. In 00-ORD-145 we reiterated this well-established principle:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
Id., p. 2, citing 95-ORD-131. In short, the purpose of the Open Records Act "is not to provide information, but to provide access to public records that are not exempt by law." Id., p. 3, citing OAG 79-547. Consistent with the foregoing, we conclude that BCC did not violate the Act in denying Mr. Riley's request for information.
A party aggrieved by this decision may appeal it by initiating an 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.
Freeland Riley, 117555, C-1Blackburn Correctional Complex3111 Spurr RoadLexington, KY 40511
Virginia C. BunningCustodian of Medical RecordsBlackburn Correctional Complex3111 Spurr RoadLexington, KY 40511
Emily DennisKY Department of CorrectionsP.O. Box 2400Frankfort, KY 40601
Footnotes
Footnotes
1 Because this issue is not addressed by either party on appeal (nor does Mr. Riley's original request indicate that he sought to receive a copy of his letter and request), its resolution is not germane to our decision. To avoid future confusion, however, we take this opportunity to clarify that Ms. Binning did act in contravention of the Act in denying this aspect of Mr. Riley's request on the basis of KRS 61.872(6) because she failed to adduce clear and convincing evidence that granting Mr. Riley's request would place an unreasonable burden on BCC as required by its mandatory language. In its entirety, KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
00-ORD-180 contains a thorough discussion of this intentionally high standard and its application.
2 With respect to Mr. Riley's complaint that his Hepatitis C medication should not have been discontinued until Dr. Shedlofsky examined him again and reviewed the results of his blood test, Ms. Dennis correctly asserts that an open records appeal is not the appropriate forum in which to raise this concern.
3 Dr. Wrightson is presumably the unidentified doctor referenced in Mr. Riley's request.
4 In relevant part, KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, . . .; and 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 these statutes.