Request By:
Brandon R. Bruin # 240651
Teresa Peters
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Taylor Payne,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Kentucky Open Records Act in its disposition of the open records request by inmate Brandon Bruin. We conclude that KSP's disposition of the request was in accordance with the Act.
On January 30, 2017, Bruin made two written open records requests to KSP. In one request, Bruin sought "1-copy of incoming legal mail log on or around Dec. 26, 2016; January 25, 2017 nurse Sexton's notes on loss of consciousness; Memorandum from RN Neely delegating my meal, and liquid schedule; strike cease memorandum to Tonya Gray on Jan. 26, 2017; Food order entered by nurse day on Jan. 28, 2017 thru Dr. Forte; January 26, 2017 memo's emailed to Randy White from Tonya Gray; Mental Health notes by Psychologist Gene on December 28, 2016; APRN Karen forced hydration order and notes prepared on January 26, 2017; vital stats 12-26-16/1-30-17[;] 1/26/2017 Hydration Order." In the other request, Bruin sought physician orders, clinic notes and mental health records from the KSP Medical Department.
Bruin states that upon learning each vital stat was logged separately, he verbally clarified to a staff member that he only needed vital stats from three days each week between December 26, 2016 and January 30, 2017. Bruin states he was told he needed to submit this clarification in writing. By letter dated February 7, 2017, Bruin clarified that his request for "Memorandum from RN Neely delegating my meal, and liquid schedule" was a request for a copy of the "Memorandum 'Placed on INHP-007 door' by Director of Nursing, Kelly Neely. The vitals requested are a sampling of such request. I request one copy of each, but of three different days either shift from the dats [sic] prescribed for a total of (15) copies."
In a response dated February 7, 2017, KSP provided Bruin with the requested records, except for the January 25, 2017, notes of Nurse Sexton, which KSP stated did not exist. With respect to the vital stats, KSP provided Bruin with 141 pages of records, stating that it was proceeding with the original request because Bruin was very specific that he wanted the vital stats between 12/26/16-1/30/17. KSP's Medical Department provided 147 pages of medical records in response to Bruin's request.
Bruin filed this appeal on February 8, 2017, which this office received on February 13, 2017. He first claims that he received both responses from KSP on February 8, 2017, which he alleges was untimely. Second, he alleges KSP provided an abundance of meaningless material in response to his request for "vital stats 12-6-16/1-30-17" because he amended this request to seek only "a sample" of the vital stats, consisting of "one copy of each, but of three different days either shift from the dats [sic] prescribed for a total of (15) copies."
KSP responded to Bruin's appeal, stating that it complied with Bruin's request in accordance to the Open Records Act. It did not address the substantive response from KSP's Medical Department, because Bruin's appeal did not seek a decision finding that response violated the Act. Bruin responded to KSP's response by filing with this office what he identifies as a "Supplemental Appeal." He clarified that he is also seeking a finding that KSP's Medical Department violated the Act by providing "ample documents at their own assumption and not in reliance to Petitioners Respected Request." However, he provided no support for that position.
With respect to the timeliness of KSP's responses, KRS 197.025(7) requires KSP to respond within five business days of receiving Bruin's request. The record indicates that KSP received the requests on Wednesday, February 1, 2017. Therefore, responses were due on Wednesday, February 8, 2017. The responses were dated February 7, 2017, and KSP claims it provided Bruin with the responses on this date. Bruin alleges he did not receive the responses until February 8, 2017. Irrespective of this factual dispute, the record is clear that KSP responded within five business days as required by KRS 197.025(7).
With respect to Bruin's complaint that the records produced by KSP were both excessive and meaningless, if a person feels the intent of the Open Records Act is being subverted by an agency by providing excessive and nonresponsive records, the person may complain to this office through the same adjudicatory process as if the record was denied. 14-ORD-065. This office has noted that KRS 61.880(1) is unambiguous and "requires the agency to produce records responsive to an open records request formulated with sufficient specificity to enable the agency's custodian of records to locate and retrieve those records." 07-ORD-105. An agency may not commingle nonresponsive public records with responsive public records to create "unnecessary impediments to effective inspection, " 08-ORD-032.
In our view, KSP acted in accordance with KRS 61.880(1). In the response, KSP stated that it was providing Bruin with 141 pages of vital stats taken between the dates of December 26, 2016 and January 30, 2017, rather than "a sampling of such request" which Bruin sought in his February 7, 2017, clarification letter, on the basis that Bruin "was very specific" that he wanted the vital stats between those dates. To the extent a factual dispute exists regarding the actual records sought by Bruin, the role of this office in an open records appeal is not to adjudicate a potential disparity between records produced and those sought. See 07-ORD-113.
In any event, we do not find that KSP subverted the intention of the Open Records Act by failing to narrow its response in accord to Bruin's February 7, 2017, clarification letter. Ultimately, the produced documents were neither unresponsive nor an unnecessary impediment to Bruin's effective inspection of the requested records. Under either the original request or the clarification, Bruin sought vital stats between December 26, 2016 and January 30, 2017, and KSP provided him with those records. Therefore, KSP did not commingle unresponsive documents with responsive documents.
With respect to Bruin's claims regarding the records produced by KSP's Medical Department, he provides no argument to support his contention that the records were not responsive to his request. Without such support, we decline to address this issue raised in his letter styled a "Supplemental Appeal."
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.