Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lee Adjustment Center ("LAC") violated the Open Records Act in the disposition of Bryan Lafayette's April 6, 2009, request to inspect and copy records from his medical file. For the reasons that follow, we find that LAC has not established a sufficient basis for its denial of inspection.
On April 2, 2009, pursuant to an earlier request, Mr. Lafayette reviewed his medical records from February 2, 2004, to March 26, 2009, and obtained copies of 68 pages of documents from that file. In his subsequent request on April 6, 2009, he stated the following:
I need to inspect and copy any and all records related to my ring worm on my chest from 2-2-2004 untill [sic] present 2009[.] This need was not known to me when I inspected my records in March etc. Then it was for my nose problems. I am entitled to these records pursuant to KRS 61.880(2).
The disposition of his request, noted on the same form, was as follows:
4-8-09 - Mr. LaFayette may report to Medical at 11:00 a.m. on Friday, April 10, 2009, to inspect any/all documents posted to his chart since his last inspection on March 26, 2009. - H. Williams
4-13-09 - Forwarded 11 pages to Records - H. Williams
Mr. Lafayette refused to accept the 11 pages because they did not include the material he wanted to review, which was in the records that he had already inspected on April 2 and was not permitted to inspect a second time.
Mr. Lafayette timely initiated an open records appeal, stating in pertinent part:
1. LAC's response effectively denies me my right to inspect and/or copy the records sought.
2. LAC's response violates the Open Records law requirement insomuch as LAC does not cite to any section of the Open Records law justifying their denial to allow me to inspect the records.
3. Nothing in the Open Records Law limits one requesting inspection to first resolve every possible part of the records that he wishes to examine.
?
4. I asked to inspect the records to avoid unnecessary costs of related records that I would not need. While it is important I inspect all the records related to the ringworm condition, it's not necessary that I request every related document I find be copied.
5. I asked to inspect all records relating to the ringworm going back to 2004 because I do not recall the date/year that I first complained of and was treated for that condition. It is very possible that the inspection would cover a very limited number of pages over a limited period of time.
6. LAC's response makes no assertions of bad faith on my part.
7. The earlier inspection was limited to my deviated septum and related surgery. At the time of the inspection regarding the deviated septum I did not need records relating to what has been labeled 'ringworm" condition subject of this request.
8. LAC knew or reasonably would have realized that because I had not been treated for "ringworm" since 26 March, 2009, that the decision limiting me to inspection from that date acted as a complete denial of inspection regarding the ringworm condition.
9. One can reasonably infer that because of the earlier inspection I would know the portions of the records file that do not relate to the ringworm condition thus limiting the records that I would need to review.
(Emphasis in original.)
The response to Mr. Lafayette's appeal was submitted by attorney G. Edward Henry, II, on behalf of the Corrections Corporation of America, which runs LAC. Mr. Henry refers to Corrections Policy and Procedure (CPP) 6.1, section VI(D)(5), which states that "[a]ny repeated or duplicative requests for a public record shall be reviewed on a case by case basis before making a decision." 1 He then argues:
Since Mr. Lafayette has either reviewed the entirety of his medical record or received copies of newly generated medical records all within the last three weeks, the Lee Adjustment Center believes that this is a duplicate request and he has been fully satisfied. Further, since the Lee Adjustment Center believes that this inspection request is an attempt to harass and disrupt their functions, it further may be rejected pursuant to KRS 61.872(6).
This office has previously upheld the denial of a duplicate request for records. In 95-ORD-47, for example, we stated that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." Consequently, in 04-ORD-018, at p. 4, we found that a prisoner who had inspected his inmate file once was not entitled to view it again unless he could "explain the necessity of reproducing the same records which either already have been provided or have been inspected by him, such as loss or destruction of the records."
In this case, Mr. Lafayette has provided such an explanation. Allegedly when he inspected his medical records on April 2, he did not have a need to inspect and copy the pages relating to ringworm, but as of April 6 he did have such a need. Since his medical records for the period in question evidently consisted of more than 68 pages, with perhaps little differentiation among the pages, we cannot assume that he would know from his previous inspection which additional pages he would need, so as to be able to "request copies based on his original inspection, without reentry into the entire file." Cf. 04-ORD-018, p. 3.
Admittedly, Mr. Lafayette's claim that after only four days he suddenly needed to inspect his records relating to ringworm is not fully explained and is not easy to comprehend. At the same time, however, his assertion is not disputed as such, nor is there any evidence to contradict it. Because of the short time between his two attempts to inspect the same records, this presents a close case. We must, in the end, be guided by the principle that "free and open examination of public records is in the public interest," KRS 61.871, and give Mr. Lafayette's explanation the benefit of the doubt.
While such claims of a newfound need to reinspect records are potentially subject to abuse, there is nothing in the record here to show that Mr. Lafayette is abusing the open records process, causing an unreasonable burden, or disrupting the essential functions of the facility, beyond LAC's mere "belie[f]" that he is attempting to engage in harassment. This limitation on the right to inspection must be "sustained by clear and convincing evidence." KRS 61.872(6). Since LAC has not met this burden, we must find that under the circumstances its refusal to allow Mr. Lafayette a second inspection of his medical records violated his right of inspection under KRS 81.872(2).
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 proceedings.
Bryan Lafayette, # 281298-H-2G. Edward Henry, II, Esq.Leigh K. Meredith, Esq.Bobby MooreCole Carter, Esq.
Footnotes
Footnotes
1 While CCP 6.1 is a valid policy, a correctional facility's discretion in such matters is always subject to review by this office under KRS 61.880.