Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in its disposition of an October 6, 2016, open records request from inmate Donald Moore. We conclude that Kentucky State Reformatory violated KRS 61.880(1) when it did not provide a written response to the request.
Mr. Moore requested "a copy of 'medications in C.2' referenced in CPP 13.1; the list for formulary and non-formulary (1) each." Mr. Moore's appeal stated that "the agency failed to respond within five (5) working day in violation of the Kentucky Open Records Act. Please investigate and take the appropriate action." Catherine M. Stevens, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of the Department of Corrections. In her response, Ms. Stevens explained that Mr. Moore's request was received on October 10, 2016, and that Kentucky State Reformatory (KSR) has five calendar days, excepting Saturdays, Sundays and legal holidays to respond, pursuant to KRS 197.025(7). She stated that on October 17, 2016, within the five-day response period, KSR sent Mr. Moore a two-page document listing his medications, but that KSR did not provide Mr. Moore with a written response to his Open Records request. Ms. Stevens explained that she had discussed that error with KSR's records staff to correct that deficiency in the future.
Although KSR provided Mr. Moore with a document listing his medications, the failure to respond specifically to the Open Records Request is a violation of KRS 61.880(1). That statute requires a written denial to "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld."
Ms. Stevens also explained that Mr. Moore is not entitled to the list of formulary medications as that list is a document that does not specifically reference him. KRS 197.025(2) provides that "KRS 61.970 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual." As pointed out by Ms. Stevens, this office has consistently interpreted this provision as requiring a reference by name. 03-ORD-150; 09-ORD-057. We affirm the denial of Mr. Moore's request for the reasons given by Ms. Stevens on appeal.
KSR further advised that the "non-formulary list" does not exist. Ms. Stevens stated: "By definition, all medications not on the formulary list are considered 'non-formulary. '" As the Attorney General has consistently recognized, a public agency cannot afford a requester access to records that it does not have or which do not exist, an agency discharges its duty under the Open Records Act by affirmatively so indicating . 99-ORD-150. KSR failed to discharge its duty under the Open Records Act by affirmatively indicating to Mr. Moore that the "non-formulary list" does not exist.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.