NOT PUBLISHED 

94-ORD-128

October 25, 1994

IN RE: Michael Friend/Kentucky State Reformatory

OPEN RECORDS DECISION

This appeal originated in a request for records submitted by Mr. Michael Friend, an inmate at Kentucky State Reformatory, to the Reformatory's medical records custodian on September 12, 1994. Mr. Friend originally requested two copies of "[a]ll 'progress reports' entered in my own medical files since and including February of 1994[ ]" and "[a]ll laboratory tests results (for blood tests and urine tests) sent for analysis at an outside laboratory in Aug. [and] Sept. of 1994 (including those done by Tri-County Baptist East Hospital) in my own medical files." On behalf of Kentucky State Reformatory, Ms. Debra Hedges, Medical Records Custodian, responded to his request on September 23, 1994, informing Mr. Friend of the cost for his medical records. Ms. Hedges also informed Mr. Friend that a money transfer from his case worker was required before he would receive the requested records.

On September 26, 1994, Mr. Friend contacted Ms. Hedges, informing her that due to the cost, he might not want two copies of his requested records. Ms. Hedges then invited Mr. Friend to come to the medical records department to review his chart and check exactly what copies he wanted. Mr. Friend took Ms. Hedges's advice and personally inspected the records in her office. At this time, he decided he did not want copies of everything in his medical records file. Mr. Friend then proceeded to choose the records he wanted, and informed Ms. Hedges of his decision. Since September 26, 1994, Ms. Hedges has not received a money transfer from Mr. Friend's case worker, and therefore has not provided Mr. Friend with the records he requested.

We are asked to determine if the Kentucky State Reformatory violated the Open Records Act in responding to Mr.

Friend's request. We have reviewed the written record submitted by Mr. Friend, consisting of his September 12, 1994, request, and Ms. Hedges's September 23, 1994, response, and conclude that although Ms. Hedges's initial response was procedurally deficient, insofar as she failed to respond within three business days, her actions were otherwise consistent with the Open Records Act.

KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for public records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. The Reformatory's response was issued some nine business days after receipt of Mr. Friend's request. Its failure to respond within three business days constituted a procedural violation of the Act.

This Office is well aware that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. While we do not condone procedural violations, we are not empowered to penalize an agency for procedural noncompliance. Our role is limited to reviewing the public agency's actions and issuing a decision stating whether the agency violated provisions of KRS 61.870 to 61.884. This we have done, and will continue to do where appropriate. If Mr. Friend seeks additional relief through the imposition of penalties, he must pursue these remedies in the courts.

Kentucky State Reformatory complied in all other material respects with the Open Records Act. KRS 61.872(3)(a) and (b) provides:

Ms. Hedges originally offered to provide Mr. Friend with the requested copies of his medical records at a cost of $7.84. After he expressed concern about these copying costs, she allowed him to personally inspect the records in her office, and indicate only those records he needed. Mr. Friend reviewed the records on September 26, and requested 42 copies from his medical file. He was advised that the cost would be $4.45. To date, Ms. Hedges has not received a money transfer from his inmate account. Under the clear language of KRS 61.872(3)(a) and (b), Ms. Hedges has discharged her duties as medical records custodian. She has afforded Mr. Friend the option of receiving copies and of personally inspecting the requested records per Sections (a) and (b). She is under no obligation to release copies of the records to him until she has received all fees. In our view, Mr. Friend's assertion that he has received "no response to [his] request, let alone the records . . . ." is somewhat disingenuous. Ms. Hedges responded, albeit in a belated fashion, and agreed to provide Mr. Friend with the records. The proverbial ball is now in his court.

Kentucky State Reformatory and Mr. Friend may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/94-1257

Distributed to:

Ms. Debbie Hedges

Medical Records

Kentucky State Reformatory

Department of Corrections

LaGrange, KY 40032

Mr. Michael Friend, #86786

Kentucky State Reformatory

3001 W. Highway 146

LaGrange, KY 40032