Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Little Sandy Correctional Complex violated the Open Records Act in its disposition of two open records requests by inmate Chris Hawkins. In his first request, dated April 4, 2016, and received April 5, 2016, Mr. Hawkins requested the following:
1) Photos of penis or genital wart taken at GRCC in 2014 or 2015;
2) Photos of penis and/or genital wart taken at LSCC during March/2016;
3) All entries relating to probiotic during March/2016;
4) Application and all entries relating to Thrive Program relevant to me;
5) Last laboratory results reflecting cholesterol levels in me;
6) Printout of all medicine I'm on and expirations
The records custodian replied on April 11, 2016: "Sending photos, meds list, last labs, last physical/cc. Sending 14 pages."
The second request, dated April 7, 2016, and received April 8, 2016, was for the following items:
1) Psychological evaluation and/or mental health notes from all mental health staff EXCEPT FOR PSYCHIATRIST OR APRN @ Northpoint Training Center from 2012 relating to my mental disorder(s) and open wings/dorms
2) MAT (Medical Assessment Transfer) VII form completed @ LSCC during 2016 regarding me
(Emphasis in original.) The response on April 11, 2016, stated: "Sending one copy of Mental Health records 2012 @ NTC and MAT form transferring to LSCC. Sending 9 page[s]."
Mr. Hawkins' appeal from these dispositions was received in this office on April 19, 2016. He alleges, in regard to the first request, that he did not receive "photos from GRCC" or the Thrive Program documents. As to the second request, he states that the MAT VII form he received was completed by nursing staff and "reflect[ed] a transfer recommendation for LSCC," but was not completed at LSCC.
On May 6, 2016, attorney Oran S. McFarlan, III, Justice and Public Safety Cabinet, responded to Mr. Hawkins' appeal on behalf of LSCC. He provided an affidavit from Teresa Meade with LSCC Medical, which states in part:
I provided [Mr. Hawkins] with two photographs that I located during my search, one from GRCC and one from LSCC. I did not note which picture came from which institution, and this is likely the source of the confusion. For the purpose of clarification, the photograph with the ID is from GRCC and the one without an ID is from LSCC.
As to the Thrive Program records, Ms. Meade states that she was initially unable to locate any such records in the Department of Corrections' Electronic Health Record, but subsequent to the filing of this appeal she contacted a psychologist who provided a document from the Kentucky Offender Management System "noting the decision to deny Mr. Hawkins' entry into the program." This document, along with a relevant document from Mr. Hawkins' medical chart dated after the filing of the appeal, was made available to Mr. Hawkins. Since it appears that the responsive records have now been made available, we find this appeal moot as to the Thrive Program records.
Lastly, as to the MAT VII form requested by Mr. Hawkins, Ms. Meade's affidavit states:
Mr. Hawkins was provided with the only responsive document in LSCC's possession at the time of the request. Please note that MAT forms are completed by the nursing staff at an institution (and not mental health staff) prior to an inmate's transfer date. In other words, before being transferred to LSCC, a MAT form was completed for Mr. Hawkins at GRCC. I provided him with this MAT form, which was the only MAT form completed for Mr. Hawkins in 2016 as of the date of his request.
(Emphasis in original.) 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. See generally
Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.3d 333 (Ky. 2005). It appears from the record that Mr. Hawkins has not been denied access to any item responsive to his requests. Accordingly, we find no violation of the Open Records Act.
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.