Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Penitentiary ("KSP") violated the Open Records Act in its disposition of inmate Uriah Pasha's request for records regarding medical treatment. For the reasons stated below, we find that KSP did not violate the Act.
On February 25, 2019, inmate Uriah Pasha ("Appellant"), requested from the KSP Medical Department a "copy of all sick call slips Uriah Pasha # 092028 submitted from 11/1/2018 through today concerning follow-up treatment by APRN Jernigan." Diane Workman, KSP Medical Records, timely responded to the request, providing Appellant 10 pages of records. Appellant was charged 10 cents per page for a total of $ 1.00 for the copies. Appellant appealed KSP's response, stating that he did not receive the records he had requested regarding APRN Jernigan but had nevertheless been charged $ 1.00.
On appeal, Angela Cordery, attorney for KSP, provided a March 13 memorandum from Ms. Workman, which explained that after reading Appellant's records request in light of his appeal KSP realized that it had incorrectly interpreted the request as it pertained to APRN Jernigan. Ms. Workman explained that she had subsequently spoken with APRN Jernigan and learned that she had not performed any follow up visits with Appellant during the time frame of the request. Ms. Workman stated that she was requesting a refund of the money paid by Appellant. Ms. Cordery further explained that after receipt of the appeal, Ms. Workman searched Appellant's medical records to ensure that there were no sick call slips requesting medical treatment from APRN Jernigan during the requisite period. Ms. Workman found only one record regarding APRN Jernigan which was included with the open record response. KSP found no other documents regarding APRN Jernigan during the time frame specified by Appellant, including sick call slips "requesting" examination by APRN Jernigan. 1
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. Based on Ms. Workman's efforts to determine the existence of the requested records, it does not appear that the requested records are in existence. 2 In the absence of legal authority requiring the creation of the records, or facts indicating the records were created, we see no need to require further explanation of the requested documents' nonexistence. See 11-ORD-091. 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Andy Beshear
Attorney General
Gordon Slone
Assistant Attorney General
Footnotes
Footnotes
1 The record indicates that it is the KSP medical staff, rather than the inmate, that schedules follow up visits and which member of the medical staff is scheduled for the follow up visit.
2 Appellant's letter of appeal indicates that, rather than seeking records, he may have actually been seeking an admission from KSP that the requested records do not exist, so as to support his claim that he has not been scheduled for examination by APRN Jernigan since November 1, 2018. That claim is apparently related to Appellant's assertion that he has not been examined by APRN Jernigan due to racial discrimination.