Opinion
Opinion By: Jack Conway,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Kentucky Correctional Institution for Women ("KCIW") violated the Open Records act in failing to respond to a request, and subsequently agreeing to provide all existing responsive records upon payment. We find that KCIW did not violate the Open Records Act in subsequently agreeing to provide all existing responsive records upon payment.
Brittany Ison ("Ison") submitted an open records request to KCIW on June 20, 2014. Ison stated that "on and around 3-10-14 I had an MRI w/ contrast and I had some sort of other brain test. I would like a copy of the results of each. . . . I'd also like any pictures available (i.e.-MRI)." Having received no response to her request, Ison initiated this appeal, which was received on July 11, 2014. KCIW responded to Ison's appeal on July 24, 2014. KCIW stated that "it did not receive this request until it received the appeal notice from the Attorney General's office. KCIW believes that the requested records have previously been provided, but sent a response with a request for payment authorization to obtain copies of requested records on July 24." The attached response stated:
I have reviewed your medical record and located a CT scan and an EEG record from March 2014. No MRI report is located in your medical file and I have been informed by medical staff that an MRI was not done. The only photos in your medical file concern your ear . . . . If you want copies of these two reports and photos, you will need to provide the authorization form to allow money to be deducted from your inmate account.
KCIW requested that the appeal be dismissed as moot as to the documents provided, and denied as to the documents that did not exist.
KRS 197.025(7) provides that "upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request." KCIW has stated that it has no record of the request. "This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning actual delivery and receipt of a request." 12-ORD-204. In the absence of any proof that KCIW actually received Ison's request, we cannot find that KCIW violated KRS 197.025(7) in failing to respond to a request it claims it did not receive.
40 KAR 1:030 § 6 provides that "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." KCIW has indicated that it is willing to provide the reports and photos upon payment. Accordingly, Ison's appeal is moot as to those documents.
Regarding Ison's request for the MRI, KCIW has indicated that no such MRI was performed. "A public agency cannot afford a requester access to nonexistent records or those which it does not possess." 11-ORD-122. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 06-ORD-029. Accordingly, KCIW did not violate the Open Records Act in denying Ison's request for a copy of the results of an MRI which was not performed.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.