23-ORD-254
September 19, 2023
In re: Michael Howard/Kentucky Department of Corrections
Summary:
The
Kentucky
Department
of
Corrections
(the
“Department”) did not violate the Open Records Act (“the Act”) when it
did not provide the Appellant with a free copy of his medical records.
Open Records Decision
Inmate Michael Howard (“Appellant”) submitted a request to the Department
for his “one free medical records copy” under KRS 422.317. The Department denied
the request because “[t]he Department of Corrections shall not be considered as a
health care provider under” KRS 422.317. This appeal followed.
On appeal, the Appellant claims his request was directed to Wellpath, LLC
(“Wellpath”) rather than the Department. However, the Appellant submitted his
request using the Department’s medical records request form and used the process
outlined in CPP 6.11 for requesting medical records from Department institutions.
Further, the Appellant’s request does not mention Wellpath. Accordingly, the
Department correctly concluded the Appellant’s request was directed toward it rather
than Wellpath.2
1
See
Corrections
Policy
and
Procedure
(“CPP”)
6.1,
available
at
https://corrections.ky.gov/About/cpp/Documents/06/CPP%206.1%20Open%20Re…-
%20Effective%207-20-2021.pdf (last accessed September 19, 2023).
2
Even if the Appellant has submitted a request for his medical records to Wellpath, the Office has
previously held that Wellpath is not a public agency subject to the Act. See, e.g., 23-ORD-170; 23-ORD-
133.Moreover, the Act does not require the Department to provide the Appellant a
free copy of his medical file.3 Rather, under KRS 61.874(1), a public agency “may
require . . . advance payment of the prescribed fee” for copies of public records. Thus,
an inmate is entitled to receive a copy of a public record only after “complying with
the reasonable charge of reproduction.” Friend v. Rees, 696 S.W.2d 325, 326 (Ky. App.
1985). It is “entirely proper for [a correctional] facility to require prepayment, and to
enforce its standard policy relative to assessment of charges to inmate accounts.” 95-
ORD-105. Accordingly, the Department did not violate the Act when it did not provide
the Appellant with a free copy of his medical records.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#370
Distributed to:
Michael A. Howard #300969
Amy V. Barker
Sara Pittman
Ann Smith
3
KRS 422.317(1) requires a licensed hospital or healthcare provider to provide a patient, upon
written request, one free copy of his or her medical record. However, KRS 422.317(2) excludes the
Department of Corrections from the definition of “health care provider.” Regardless, under
KRS 61.880(2)(a), the Office may only determine whether an agency complied with the provisions of
the Act. Because KRS 422.317 is not part of the Act, the Office lacks jurisdiction to determine whether
an agency has complied with it.