Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Blackburn Correctional Complex's (BCC) disposition of the open records requests of Timothy Lewis violated the Open Records Act. We find that it did not.
On July 13, 2004, BCC received the following two open records requests from Mr. Lewis:
Request #1 - I need a copy of all my medical records for my neck and back treatments, recommendations, including all M.R.I. and PAIN MANAGEMENT RECOMMENDATIONS and REFERRALS and Deferrals CLINICAL NOTES and headache treatment and all outside care in regards to the year 2004. Please include a copy of my insurance policy.
Request #2 - I need the address and full name of DR. QUARTERS and DR. HOSEY, these are the doctors who come to the institution and treated me on my neck and back, and I need their address to subpoena them in a case trial in the near future.
On July 14, 2004, Virginia C. Binning, BCC Medical Department, responded to each request, advising:
Response to Request #1 - A copy of the medical records re: neck/ back for 2004 is enclosed. Free world health care is provided to inmates under a CHA policy issued to the Kentucky Dept. of Corrections; individual inmate polices do not exist.
Response to Request #2 -- This is a request for information. The Open Records Act does not obligate a public agency to respond to a request for information.
In his letter of appeal, Mr. Lewis asserts that BBC's denial of his request for a copy of the CHA insurance policy and the business addresses of his treating doctors violated the Open Records Act and his due process rights and equal protection rights.
After receipt of notification of the appeal and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, Corrections Division, provided this office with a response to the issues raised in the appeal. Elaborating on BCC's response, Ms. Dennis explained:
Ms. Binning's 7/14/2004 responses to inmate Timothy Lewis complied with the Open Records Act. In her response to Request #1, Ms. Binning provided Mr. Lewis with 9 pages of records responsive to his request, all of which were included in Mr. Lewis' inmate record folder. With respect to his request for ". . . a copy of my cha insurance policy . . ." Ms. Binning properly responded that no such record exists. As your office has held so many times, a public agency cannot afford a requester access to a record it does not have or which does not exist. 99-ORD-98. An agency discharges its duty under the Open Records Act by affirmatively so stating. 04-ORD-043; 99-ORD-150. In her response to Request #2 for addresses of doctors who had seen Mr. Lewis, Ms. Binning correctly responded to Mr. Lewis that he had made a request for information, not public records. Your office has also determined that requests for information are outside the scope of the open records law and an agency is not obligated to honor a request for information under the law. 02-ORD-88; KRS 61.870 et seq. Likewise, the Act does not require agencies to create records or to provide information. 95-ORD-048.
Finally, Mr. Lewis' interpretation of KRS 197.025(2) is incorrect. KRS 197.025(2) states that the Department of Corrections is not required to comply with a request for any record from an inmate confined in any facility unless the request is for a record that contains a specific reference to that individual. Therefore, even if Mr. Lewis requested the list of outside providers maintained by the BCC Medical Records Dept., he would not be provided the list pursuant to KRS 197.025(2).
To the extent Mr. Lewis complains in his letter that Ms. Binning's responses to his requests constitute due process and equal protection violations, the Dept. denies his allegations and further asserts that a Attorney General's appeal of an open records response is not the appropriate forum to raise these arguments.
We are asked to determine whether the responses of BCC in its disposition of Mr. Lewis' request violated the Open Records Act. For the reasons that follow, we conclude that the response did not violate the Act.
In response to Mr. Lewis' request for a copy of "my insurance policy, " BCC advised that inmates were covered under a CHA policy issued to the Department of Corrections and that individual inmate policies do not exist. 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. 04-ORD-043; 93-ORD-134. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we conclude that BCC's response in this regard did not violate the Open Records Act.
We also find that BCC's denial of the request for the business addresses of his treating doctors did not violate the Open Records Act. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. At page 2 of 95-ORD-131, the Attorney General observed.
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.
Mr. Lewis' request was clearly one for information, rather than one for a precisely described record. Accordingly, we find no error in the BCC's response that a public agency is not required to honor a request for information under the Open Records Act and that the agency could properly have denied the request on that ground.
Moreover, as noted in Ms. Dennis' response, even if Mr. Lewis had requested a copy of the list of outside providers maintained by the BCC Medical Records Department, he would not have been provided the list pursuant to KRS 197.025(2). That statute provides:
KRS 61.872 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.
The language of KRS 197.025(2) requires that the records requested by the inmate "contain a specific reference to the [requesting inmate] ." (Emphasis added.) A copy of the list of outside providers maintained by the BCC Medical Records Department would not specifically reference Mr. Lewis. Accordingly, we find that BCC could properly deny a request for a copy of the list of the business addresses of his treating doctors under KRS 197.025(2), because that list would not specifically reference him. 03-ORD-305.
In his letter of appeal, Mr. Lewis argues that BCC's responses at issue here violated his due process and equal protection rights. We cannot address, in the context of an open records appeal, a complaint that one's due process and equal protection rights have been violated. 03-ORS-029. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Our review is confined to the issue of whether the BCC violated the Open Records Act in its handling of Mr. Lewis's request, which, as noted above, we concluded it did not.
Finally, Mr. Mattingly, in his letter of appeal, contends that he did not receive all the records he asked for. BCC contends he was provided with records responsive to his requests. Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
Accordingly, the parties should continue to cooperate to resolve any differences or misunderstandings related to records sought and those provided.
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.