Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in its disposition of the open records request of inmate Uriah Pasha. In his request dated April 1, 2013, Mr. Pasha requested "[a] copy of the Purchase Order Receipt for Uriah Pasha # 092028 purchase of Eye Glasses from Dr. Bizar Vision World (1999) in Pasha's medical (Eye Doctor) File."
On April 5, 2013, medical records custodian Sally Tyler responded as follows:
In accordance with KRS 61.872(5) [ sic ] you are notified that the requested document cannot be located?
Your Electronic Medical Record (EMR) has been researched and no purchase order receipt for purchase of eye glasses from Dr. Bizar Vision World (1999) was located. You should have paper medical charts but effective May, 2011 these charts are no longer transferred from institution to institution. You[r] record should be in medical archives and you can send a record request to them for the copies you are wanting.
Ms. Tyler's response provided Mr. Pasha with the address for the medical archives at the Roederer Correctional Complex in LaGrange. Mr. Pasha appealed April 5, 2013, on the grounds that he should not have to make a request to another facility.
On April 17, 2013, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal as follows:
KSP searched the electronic medical record for Inmate Pasha and the record could not be located. KSP referred Inmate Pasha to the custodian of his older paper medical file at Roederer Correctional Complex pursuant to KRS 61.872(4).
?
Inmate Pasha fails to cite any legal requirement that KSP maintain his older medical records that are no longer in use by the institution in the manner that he chooses [ i.e., electronically] rather than as determined by the Department of Corrections. KSP explained to him that it did not maintain the record that he sought and explained how to contact the custodian of the older medical records to request a search of them for the record he seeks. ?
In a further review of the request after receipt of the appeal, KSP determined that a purchase receipt was unlikely to be maintained in an inmate medical file in 1999. At that time, an inmate could order his own glasses and he would have been provided the receipt when the glasses were received and a receipt would not have been maintained by the institution.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. While Mr. Pasha is free to make a request to the Roederer Correctional Complex for the document that might exist in his paper file at that facility, we find that KSP complied with the Act in its disposition of his April 1 request by referring him to the proper address pursuant to KRS 61.872(4) ("If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records").
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.
Distributed to:
Uriah Pasha # 092028Ms. Sally TylerAmy V. Barker, Esq.