Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Correctional Institution for Women ("KCIW") violated the Open Records Act in assessing a copying fee for medical records requested by Barbara Schambon ("Appellant"). We find that the appeal is untimely and this office is precluded from addressing the merits, pursuant to KRS 197.025(3). 1
On January 31, 2019, Appellant, an inmate at KCIW, submitted a request to obtain medical records. KCIW issued a written response on the same day, stating "your request. . .for release of Medical records has been completed at this time[.]" The response further stated:
Records that are being requested consist on an estimated 3 pages, which is an estimated cost of $ .30. Per KRS 422.317(2) the Department of Corrections is not considered a health care provider and is therefore exempt from providing free copies of medical records. KRS 61.8784(1) provides that a records custodian may require advance payment of 10 cents per page for copying, and, if applicable, postage costs.
KCIW advised that it would not charge Appellant's inmate account until she picked up the responsive records.
On February 26, 2019, Appellant submitted another medical records request form. Rather than requesting records, Appellant submitted the form to dispute KCIW's disposition of the January 31 request. Appellant stated that she had "recently requested" medical records, and asked "if 2 ( sic ) refuse to sign a money slip for my medical records copies would I still get the copies." KCIW responded on the same day. The response stated "[t]he Department of Corrections shall not be considered as a health care provider" and repeated the explanation of KRS 422.317(2). 2
On March 5, 2019, Appellant appealed the disposition of her request. On March 15, 2018, Justice and Public Safety Cabinet Attorney Julie C. Foster responded to the appeal on behalf of KCIW. Ms. Foster argued that the appeal is time barred by operation of KRS 197.025(3). She noted that KCIW's January 31, 2019 response explained KRS the cost for copying and the application of KRS 422.317(2). She argued that the response on February 26, 2019 repeated the same explanation. Ms. Foster argues that the appeal was due within 20 days of the January 31 response and the March 5 appeal was therefore untimely.
We find that KCIW issued a final and appealable disposition on January 31, and Appellant failed to appeal that disposition within 20 days. Therefore, KRS 197.025(3) precludes this office from addressing the merits of the appeal. KCIW issued a disposition on January 31 that addressed the cost of copying the responsive records, but also explained the application of KRS 422.317(2). Appellant did not raise any additional issues when she filed her subsequent medical records request form. She merely disputed the grounds KCIW relied on in making its initial decision. Subsequent correspondence disputing a final and appealable disposition does not extend the 20 days for perfecting an appeal under KRS 197.025(3). See 14-ORD-237. Appellant was required to perfect her appeal of the disposition of her request within 20 days of January 31, 2019. Therefore, her March 5 appeal is untimely.
This office is precluded from rendering a decision on the issues raised in this appeal. A rule of strict compliance applies to tardy appeals.
Johnson v. Smith, 885 S.W.2d 944 (Ky. 1994);
City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990); 15-ORD-225. "Such appeals are subject to automatic dismissal." 12-ORD-121. By its mandatory and express language, KRS 197.025(3) applies to any denial of an open records request submitted by all persons confined in a penal facility. Because Appellant is a "person[] confined in a penal facility," and because she failed to properly challenge the disposition of her request within 20 days, this appeal is untimely and this office is precluded from addressing the merits of his appeal by operation of KRS 197.025(3). 10-ORD-031; 17-ORD-134; 17-ORD-250. To hold otherwise would circumvent the intent of the General Assembly as expressed in KRS 197.025(3). See 02-ORD-54; 07-ORD-058; 08-ORD-209; 14-ORD-001; 15-ORD-137; 17-ORD-218.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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
J. Marcus Jones
Assistant Attorney General
Footnotes
Footnotes
1 KRS 197.025(3) states: "KRS 61.870 to 61.884 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court."
2 KRS 422.317(2) provides: The Department of Corrections shall not be considered as a health care provider under this section; however, the department may make medical records of an individual inmate available to that individual inmate unless the department, through its designee, determines that the provision of the record is subject to the provisions of KRS 197.025.