JAMES NICK HARRISON v. ROGER WEBB, JAILER
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RENDERED: MAY 11, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001900-MR
JAMES NICK HARRISON
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
ACTION NO. 98-CI-00003
v.
ROGER WEBB, JAILER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND TACKETT, JUDGES.
JOHNSON, JUDGE:
James Nick Harrison, pro se, appeals from an
order of the Floyd Circuit Court entered on June 29, 1999, which
denied his pro se motion for a hearing on his request for copies
of medical records from the Floyd County Jail pursuant to the
Kentucky Open Records Act.1
Having concluded that Harrison is
not entitled to judicial relief due to his failure to exhaust his
administrative remedies, we affirm.
In November 1997, Harrison was an inmate at the
Kentucky State Penitentiary in Eddyville, Kentucky, where he
1
Kentucky Revised Statues (KRS) 61.870 to 61.884.
worked as a legal aide to fellow inmates.
On November 11, 1997,
he mailed two requests pursuant to the Kentucky Open Records Act
to Roger Webb, the Floyd County Jailer.
The requests sought
medical records from the Floyd County Jail pertaining to Herbert
Gene Salisbury, Jr., who was incarcerated at Eddyville for a
murder conviction from Floyd County.
The first request sought a
copy of the medical records or the logs of the medical records
indicating the medication taken by Salisbury between November 1219, 1994, and December 14-16, 1994.2
The second request sought
documents showing the name and address of the treating physician
under contract to the jail in the month of November 1994.
Harrison included with the two requests a “GENERAL RELEASE
AUTHORIZATION” with Salisbury’s notarized signature.
This
document stated that Salisbury authorized “the release of any and
all RECORDS, REPORTS, or other INFORMATION pertaining to me [as]
listed on the reverse side hereof” to Harrison, a resident legal
aide.
Harrison did not receive a response to his requests.
On December 3, 1997, Harrison sent a follow-up letter,
which inquired about the lack of a response.
included copies of the two previous requests.
That letter
When Harrison did
not receive a response to his letter, he sent a second follow-up
letter on December 18, 1997.
Again, he received no response from
Webb.
On January 5, 1998, Harrison filed a civil complaint in
the Floyd Circuit Court pursuant to the Kentucky Open Records
2
These dates apparently cover a period when Salisbury was in
the Floyd County Jail during his murder trial.
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Act.
Harrison alleged that Webb had violated his statutory
responsibility to respond in good faith to the two open record
requests.3
He asserted that the documents he had requested were
public records and that they were subject to disclosure under the
Act.
Harrison sought injunctive and monetary relief.
Webb
answered the complaint by denying most of Harrison’s factual
allegations.
He stated that Salisbury’s medical records were
not subject to disclosure because they were confidential; and
that Harrison had no authority to obtain medical records on
behalf of Salisbury.
Webb sought dismissal of the complaint for
its failure to state a claim.
On June 18, 1999, Webb filed a memorandum of law in
support of his motion to dismiss, or alternatively, motion for
summary judgment.
He argued that medical records are not a
“public record” within the Kentucky Open Records Act, KRS
61.870(1)(h)(2), because they are not related to the functioning
of a state agency.
He also claimed that Harrison lacked standing
to bring the action, since he had failed as required by KRS
61.872(3)(b) to include with his requests the fees for the
copying and the cost of mailing.
On June 29, 1999, the circuit court entered an order
dismissing the complaint and striking the pleadings.
The circuit
court stated that Harrison was improperly practicing law without
a license and that he had no connection with Salisbury because he
(Harrison) had not been incarcerated at the Floyd County Jail.
3
KRS 61.880.
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Harrison filed a CR4 59.05 motion to amend the judgment.
Harrison argued that the circuit court had misconstrued his
complaint and that the Kentucky Open Records Act provided any
person the right to inspect public records.
On July 27, 1999,
the circuit court summarily denied the motion to amend.
This
appeal followed.
Harrison argues that he has the right to receive a copy
of Salisbury’s medical records from the jail regardless of his
reason for requesting the records because the records constitute
a “public record” under the Kentucky Open Records Act.5
He
further notes that a “public agency” subject to the provisions of
the Open Records Act includes “[e]very state or local government
officer[.]”6
We agree that a county jailer is clearly a local
government officer covered by the Act;7 and generally, a prison
inmate has the same right to inspect a public record as any other
person.8
KRS 61.870(2) provides as follows:
“Public record” means all books, papers,
maps, photographs, cards, tapes, discs,
diskettes, recordings, software, or other
4
Kentucky Rules of Civil Procedure.
5
KRS 61.870(2).
6
KRS 61.870(1)(a).
7
See, e.g., Opinions of the Attorney General (OAG) 79-575
(indicating Perry County Jailer is local officer under the Open
Records Act).
8
KRS 61.872(1) states: “All public records shall be open for
inspection by any person . . . .” and KRS 61.872(2) states: “Any
person shall have right to inspect . . . ” [emphasis added]. See
also OAG 92-94. But see KRS 197.025, which limits an inmate’s
rights regarding an Open Records request.
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documentation regardless of physical form or
characteristics, which are prepared, owned,
used, in possession of or retained by a
public agency. “Public record” shall not
include any records owned or maintained by or
for a body referred to in subsection (1)(h)9
of this section that are not related to
functions, activities, programs or operations
funded by state or local authority[.]
Webb argued before the circuit court, and he continues
to argue in this appeal, that the medical records requested by
Harrison are not a “public record.”
He relies upon Hardin County
v. Valentine,10 which held the medical records of a patient of a
public hospital were not a “public record” under KRS 61.870(2).
This Court’s holding in Valentine was based on the exclusion
contained in the second sentence of KRS 61.870(2),11 since “the
medical records of those patients in a public hospital are not
related to the functioning of the hospital, the activities
carried on by the hospital, its programs, or its operations.”12
This Court further stated that “patients of a publicly-owned
hospital have as great an expectation that their medical records
will not be subject to public scrutiny as do the patients of
9
KRS 61.870(1)(h) includes within the definition of “public
agency,” “[a]ny body which derives at least twenty-five percent
(25%) of its funds expended by it in the Commonwealth of Kentucky
from state or local authority funds[.]”
10
Ky.App., 894 S.W.2d 151 (1995).
11
“‘Public record’ shall not include any records owned or
maintained by or for a body referred to in subsection (1)(h) of
this section that are not related to functions, activities,
programs or operations funded by state or local authority[.]”
12
Id. at 152.
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private hospitals.”13
We believe Webb’s reliance on Valentine is misplaced.
First, Valentine involved the payment of the costs associated
with the production of individual medical records from a public
hospital in the course of a personal injury action.
The case sub
judice concerns medical records in the possession of a local
jailer, who is constitutionally and statutorily required to
provide medical treatment to inmates.14
In addition, jailers are
required to maintain medical records as a part of each inmate’s
jail record.15
Finally, we do not believe that the exclusion
referred to by the Valentine Court applies to county jailers, who
fall within subsection (1)(a) of KRS 61.870, rather than
subsection (1)(h).
By enacting the Kentucky Open Records Act, our
Legislature clearly demonstrated its intention that the Act be
applied liberally.
KRS 61.871 declares that the basic policy of
the Act “is that free and open examination of public records is
in the public interest” and that “the exceptions . . . provided
by law shall be strictly construed, even though such examination
may cause inconvenience or embarrassment to public officials or
others.”
Accordingly, we believe the issue of another person
inspecting an inmate’s medical records is more appropriately
13
Id.
14
Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976); Langley v. Coughlin, 888 F.2d 252, 254 (2d. Cir.
1989); KRS 441.045; 501 Kentucky Administrative Regulations (KAR)
3:090.
15
501 KAR 3:020(5); KRS 441.055.
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analyzed under the privacy exclusion contained in KRS 61.878.16
However, we also note that under KRS 61.884, “[a]ny person shall
have access to any public record relating to him or in which he
is mentioned by name, upon presentation of appropriate
identification, subject to the provisions of KRS 61.878.”
Apparently, Harrison attempted, at least indirectly, to invoke
KRS 61.884, by including with his requests the “GENERAL RELEASE
AUTHORIZATION” from Salisbury.17
Thus, we do not agree with Webb
that he was entitled to have Harrison’s complaint dismissed by
the circuit court based on Valentine.
In the alternative, Webb argues that Harrison’s
complaint was properly dismissed by the circuit court because he
failed to comply with the exhaustion of remedy provisions of KRS
197.025(3).18
Under KRS 61.880(1), a public agency is required
16
For example, KRS 61.878(1)(a) includes “[p]ublic records
containing information of a personal nature where public
disclosure thereof would constitute a clearly unwarranted
invasion of personal privacy[.]” See generally Kentucky Board of
Examiners of Psychologists & Division of Occupants & Professors,
Department for Administration v. The Courier-Journal & Louisville
Times Co., Ky., 826 S.W.2d 324 (1992); Lexington-Fayette Urban
County Government v. Lexington Herald-Leader Co., Ky., 941 S.W.2d
469 (1997); and Zink v. Commonwealth of Kentucky, Department of
Workers’ Claims, Labor Cabinet, Ky.App., 902 S.W.2d 825 (1994).
17
It is unclear why Salisbury did not file the Open Records
requests himself. This perhaps would have prevented much of the
confusion and problems generated in this case.
18
Webb has also raised as a defense KRS 197.025(2), which
states:
KRS 61.872 to the contrary notwithstanding,
the department shall not be required to
comply with a request for any record from any
inmate confined in a jail or any facility or
any individual on active supervision under
the jurisdiction of the department, unless
(continued...)
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to respond to an open records request in writing within 30 days
after receipt of the request.
When an agency responds by denying
inspection, in whole or in part, it must include a statement of
the specific exception that it is relying upon to authorize
withholding of access to the record and it must provide an
explanation of its application to the record requested.
The
Legislature created an administrative review procedure for
addressing disputes involving open records requests through the
Attorney General’s Office.
KRS 61.880 allows a person who has
been denied access to a record the right to a review of that
denial in a written decision by the Attorney General.
If the
Attorney General’s decision is not appealed within 30 days, it
becomes legally binding and enforceable in circuit court.19
KRS
61.880(4) also allows a person to file a written complaint with
the Attorney General if he feels the intent of the Kentucky Open
Records Act “is being subverted by an agency short of denial of
inspection[;]” “and the complaint shall be subject to the same
adjudicatory process as if the record had been denied.”
While a person generally is not required to exhaust the
remedy provided by KRS 61.880 before filing suit in circuit
18
(...continued)
the request is for a record which pertains to
that individual.
However, that provision did not become effective until July 15,
1998, after Harrison had submitted his requests and after he had
filed the civil lawsuit.
19
KRS 61.880(5)(b).
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court,20 the Legislature has imposed such a requirement for
inmates.
KRS 197.025(3) provides:
KRS 61.880 to the contrary notwithstanding,
all persons confined in a penal facility
shall challenge any denial of an open record
with the Attorney General pursuant to the
procedures set out in KRS 61.880(2) before an
appeal can be filed in a Circuit Court.
In the case at bar, it appears that Webb’s failure to
respond to Harrison’s initial two open records requests and to
his follow-up requests may have constituted a violation of KRS
61.880(1).21
This issue was presented to the circuit court by
Harrison, but it was not addressed.22
Moreover, the remedy for a
violation based on the failure to provide an adequate response to
an open records request is not necessarily the automatic release
of the records.
In Edmondson v. Alig,23 this Court held that
review and analysis of the substantive issue of the entitlement
to disclosure under the Kentucky Open Records Act is required,
even if there has been a violation in the adequacy of the
response.
In Alig, this Court remanded the case for further
review by the circuit court.
However, since Harrison has not
exhausted the remedy requirement of KRS 197.025(3), we must
20
KRS 61.882(2).
21
See OAG 79-575 (finding failure of Perry County Jailer to
respond to open records request constituted violation of KRS
61.880(1)).
22
Similarly, Webb may be subject to monetary damages
pursuant to KRS 61.882(5), but the issue has not yet been
properly presented to the circuit court.
23
Ky.App., 926 S.W.2d 856 (1996).
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affirm the circuit court in this case - although we do so for a
reason different from the one relied upon by the circuit court.
We believe the circuit court was mistaken in ruling that
Harrison’s lack of personal connection with Salisbury’s medical
records or the Floyd County Jail precluded him from having
standing to bring the civil suit to enforce the Kentucky Open
Records Act.
Consequently, there has not been an adequate review
and determination of the substantive merit of Harrison’s
requests.
We hold that Webb’s failure to respond to Harrison’s
requests constituted a denial on both requests for purposes of
KRS 197.025(3); and before seeking relief in circuit court,
Harrison must exhaust his administrative remedies by seeking
review of both requests by the Attorney General.
For the foregoing reasons, the order of the Floyd
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James Nick Harrison, Pro Se
Eddyville, KY
D.G. Lynn
Lexington, KY
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