Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Glenn Odom appeals Kentucky State Penitentiary's handling of his September 8 and 10, 2014 open records requests for copies of all medical requests relating to an ear condition and the prescription for the eardrops he received. In supporting documentation, Mr. Odom acknowledged receipt of responsive records but asserted that he has not received " ALL medical requests regarding [his] ears. " (Emphasis in original.) He noted that he has "certain requests" that KSP did not give him " and . . . signed affidavits from officers proving that [he] continue[s] to submit medical requests." (Emphasis in original.) Mr. Odom did not provide this office with copies of the medical requests he states that he has but that KSP did not give him, or the signed affidavits he states that he has, as proof of the existence of additional responsive records that were not provided. Nothing in the record on appeal casts doubt on KSP's assertion that all responsive records have been disclosed to Mr. Odom. 1 Compare 12-ORD-171 (agency violated the Open Records Act by failing to properly respond to request for appraisal records the creation of which was required by statute).
In supplemental correspondence directed to this office, KSP confirms issuance of timely responses to both requests and disclosure of all responsive records. The agency advises:
[Medical] requests are normally retained to be scanned into the electronic medical record (EMR) at KSP. A search was made of the electronic medical record and all requests maintained in the EMR that were responsive to the request were provided. Five requests were provided . . . . Medical records staff asked nursing staff whether the requests were maintained outside of the EMR and the response was that they were not.
Because it could not disclose additional requests that did not exist, KSP maintained that it discharged its duty under the Open Records Act. We agree.
In the absence of any facts or law establishing the existence of additional records not disclosed, we find that KSP did not violate the Open Records Act in responding to Mr. Odom's September 8 and 10, 2014 records requests. 12-ORD-112 (affirming denial of request for nonexistent records in the absence of a statute, regulation, or case law directing the creation of the records or of any factual proof of the records' existence; "proof" presented by requester of the existence of additional records was not sufficient to overcome agency's claim that records did not exist). Here, as in 12-ORD-112, Mr. Odom's unverified proof of the existence of additional medical requests is not sufficient to overcome KSP's claim that all responsive records have been produced.
Either party may appeal this decision 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.
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