ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
KENNETH J. FALK JEFFREY A. MODISETT
Indiana Civil Liberties Union Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JOHN GOLITKO, et al., )
vs. ) No. 49A04-9808-CV-392
INDIANA DEPARTMENT OF CORRECTION, )
et al., )
APPEAL FROM THE MARION CIRCUIT COURT
The Honorable William T. Lawrence, Judge
Cause No. 49C01-9711-CP-2717
May 21, 1999
OPINION - FOR PUBLICATION
Appellant-Plaintiff John Golitko, on his own behalf and on behalf of a class certified
under Ind. Trial Rule 23 (collectively, Golitko), appeals the trial court's order denying his
motion for summary judgment and granting summary judgment in favor of Appellees-
Defendants Indiana Department of Correction and Ed Cohn, in his official capacity as
commissioner of the Indiana Department of Correction (collectively, the DOC). We
Golitko raises two issues on appeal which we consolidate and restate as whether the
DOC's refusal to grant inmates direct, personal access to their medical records violates state
statutory and federal constitutional provisions.
The largely undisputed facts reveal that DOC employees generate and maintain health
care service records reflecting the medical care provided to inmates. (R. 35). Those medical
records are kept in individual files at various institutions operated by the DOC. (R. 35).
Golitko, an inmate confined in a DOC institution, attempted to review his medical records
due to concerns about the diagnosis and treatment of a medical condition, and for purposes
of filing a tort claim alleging improper treatment. (R. 7, 97-98). His repeated requests to
examine his medical records were denied. (R. 98).
On November 20, 1997, Golitko filed a Complaint for Declaratory and Injunctive
Relief claiming that DOC regulations restricting inmates' personal access to their medical
records violated both Indiana law and the Due Process Clause of the Fourteenth Amendment.
(R. 5, 7-10). The complaint was later amended to include a claim under 42 U.S.C. § 1983.
(R. 12). Golitko additionally sought certification of the action on behalf of a class of
similarly situated persons incarcerated in DOC facilities. (R. 5, 18-23). On February 2,
1998, the trial court certified the matter as a class action pursuant to T.R. 23(A) and T.R.
23(B)(2), and appointed Golitko as class representative. (R. 5, 33).See footnote
Discussion and Decision
On March 20, 1998, Golitko filed a Motion for Summary Judgment alleging that the
DOC's violations of state statutory and federal constitutional provisions entitled him to
judgment as a matter of law. (R. 5, 95-96). The DOC thereafter filed a Cross-Motion for
Summary Judgment claiming that various statutes and administrative regulations granted the
DOC broad discretion to withhold from inmates direct access to their medical records. (R.
6, 100-01, 107). After a hearing, the trial court entered findings and conclusions denying
Golitko's Motion for Summary Judgment and granting the DOC's motion. (R. 6, 113-20).
This appeal ensued.See footnote
Standard of Review
When reviewing a grant or denial of summary judgment, our well-settled standard of
review is the same as it was for the trial court: whether there is a genuine issue of material
fact and whether the moving party is entitled to judgment as a matter of law. Shell Oil Co.
v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind. 1998). We must consider the pleadings and
evidence sanctioned by Ind. Trial Rule 56(C) without deciding their weight or credibility.
Summary judgment should be granted only if such evidence shows that there is no genuine
issue of material fact and the moving party deserves judgment as a matter of law. Hanson
v. St. Luke's United Methodist Church, 704 N.E.2d 1020, 1022 (Ind. 1998). All evidence
must be construed in favor of the opposing party, and all doubts as to the existence of a
material issue must be resolved against the moving party. Foster v. Auto-Owners Ins. Co.,
703 N.E.2d 657, 659 (Ind. 1998). Specific findings and conclusions are not required in the
summary judgment context, and although they offer valuable insight into the trial court's
rationale for its judgment and facilitate our review, they are not binding on this court. Jones
v. Western Reserve Group, 699 N.E.2d 711, 714 (Ind. Ct. App. 1998), trans. denied. Further,
the fact that both parties requested summary judgment does not alter our standard of review.
Von Haden v. Supervised Estate of Von Haden, 699 N.E.2d 301, 303 (Ind. Ct. App. 1998).
We must separately consider each motion to determine whether there is a genuine issue of
material fact and whether the moving party is entitled to judgment as a matter of law. Id.
Our foremost objective in construing a statute is to ascertain and give effect to the
intent of the legislature. Melrose v. Capitol City Motor Lodge, Inc., 705 N.E.2d 985, 989
(Ind. 1998). Where a statute has not previously been construed, the interpretation is
controlled by the express language of the statute and general rules of statutory construction.
Indiana State Teachers Ass'n v. Board of Sch. Comm'rs, 693 N.E.2d 972, 974 (Ind. Ct. App.
1998). We examine the statute as a whole and give common and ordinary meaning to the
words employed. Robinson v. Wroblewski, 704 N.E.2d 467, 474 (Ind. 1998). The
legislative intent as ascertained from the whole prevails over the strict literal meaning of any
word or term used in the statute. Shell Oil Co. v. Meyer, 705 N.E.2d 962, 970 (Ind. 1998).
We presume that our legislature intended its language to be applied in a logical manner
consistent with the statute's underlying policy and goals; thus, we construe the statute in such
a way as to prevent absurdity and hardship and to favor public convenience. Citizens Action
Coalition of Indiana, Inc. v. Indiana Statewide Ass'n of Rural Elec. Coops., Inc., 693 N.E.2d
1324, 1327 (Ind. Ct. App. 1998); Indiana State Teachers Ass'n, 693 N.E.2d at 974.Access to Medical Records
Golitko claims that the trial court erred in granting the DOC's Motion for Summary
Judgment and in denying his motion. According to Golitko, the legislature has afforded
inmates a statutory entitlement to directly review their own medical records, absent
particularized determinations that to do so would be injurious. Thus, the argument continues,
the DOC's regulations and policies which operate to deny such personal access amount to
a violation of both Indiana law and Golitko's due process rights.
Indiana Code section 11-8-5-2 governs the classification and disclosure of inmate
personal information.See footnote
The statute provides in relevant part as follows:
(a) The department may, under IC 4-22-2, classify as confidential the
following personal information maintained on a person who has been
committed to the department or who has received correctional services from
(1) Medical, psychiatric, or psychological data or opinion which
might adversely affect that person's emotional well-being.
. . . .
(3) Information which, if disclosed, might result in physical
harm to that person or other persons.
. . . .
(5) Information required by law or promulgated rule to be
maintained as confidential.
(b) The department may deny the person about whom the information pertains
and other persons access to information classified as confidential under
subsection (a). However, confidential information shall be disclosed:
(1) Upon the order of a court;
(2) To employees of the department who need the information
in the performance of their lawful duties;
(3) To other agencies in accord with IC 4-1-6-2(m) and IC 4-1-
(4) To the governor or his designee;
(5) For research purposes in accord with IC 4-1-6-8.6(b); or
(6) If the commissioner determines there exists a compelling
public interest as defined in IC 4-1-6-1, for disclosure which
overrides the interest to be served by nondisclosure.
(c) The department shall disclose information classified as confidential under
subsection (a)(1) to a physician, psychiatrist, or psychologist designated in
writing by the person about whom the information pertains.
Golitko contends that the legislative intent underlying Ind. Code § 11-8-5-2(a)(1) is
to grant inmates an unequivocal right of access to their medical records, unless individualized
determinations are made that such access would harm inmates' emotional well-being.
Accordingly, Golitko argues, the DOC's refusal to disclose his medical records absent a
corresponding determination that his well-being would be harmed thereby violates the
express purposes of subsection (a)(1).
At the outset, we note the well recognized rule that a governmental body may shield
information or materials from public disclosure. Avery v. Webb, 480 N.E.2d 281, 282 (Ind.
Ct. App. 1985) (stating that inmate's general right to sue alleged libelers does not encompass
the unfettered right to discover any information he desires), trans. denied. Lawful
incarceration brings about the necessary withdrawal or limitation of many privileges and
rights, a retraction justified by the considerations underlying our penal system. Faver v.
Bayh, 689 N.E.2d 727, 730 (Ind. Ct. App. 1997). Those considerations include deterrence
of crime, rehabilitation of prisoners, and institutional security. Id. Further, we disagree with
Golitko's contention that the legislature created a statutory entitlement in inmates to obtain
direct, personal access to their medical records. Indiana Code section 11-8-5-2 has been
described as an enabling act which permits the DOC to classify certain types of
information in offenders' files as confidential. See Duckworth v. Williams, 494 N.E.2d 368,
369 (Ind. Ct. App. 1986); Avery, 480 N.E.2d at 282. Subsection (b) of the statute provides
that the DOC may deny offenders and others access to any information classified as
confidential under subsection (a). Subsection (a)(5), in turn, grants the DOC permissive
authority to promulgate rules setting forth which documents are confidential and thus are not
subject to disclosure. See Avery, 480 N.E.2d at 283.
The DOC has promulgated Ind. Admin. Code tit. 210, r. 1-6-2, which defines
confidential information as follows:
Confidential information shall include personal or private information
concerning the offender including, but not limited to his education, medical
history, criminal or employment records, finger and voice prints, photographs
of his presence, institutional summaries, social history reports, progress
reports, education, vocational and diagnostic reports.
Confidential information shall, also, include medical, psychiatric and
psychological reports, criminal intelligence information and information of
clinical reports emanating from an approved drug or substance abuse program
consistent with prevailing law or promulgated regulations.
Ind. Admin. Code tit. 210, r. 1-6-2(B) (emphases added). Additionally, the administrative
code section regulating the inspection rights of offenders provides in relevant part as follows:
(A) An offender or a person designated by an offender as his agent may
inspect those portions of the official record classified as confidential with the
(1) Medical, psychological, psychiatric data, or clinical data produced as a
consequence of the offender's involvement in a substance abuse program, may
not be released to the offender or his agent. These records may be released to
a physician, psychologist or psychiatrist designated in writing by the offender.
Ind. Admin. Code tit. 210, r. 1-6-4. Finally, DOC Administrative Procedure No. 01-04-104
provides, among other things, that confidential information may not be released to offenders
or their agents, except by court order. (R. 57). The Procedure classifies all health care
service records as confidential,See footnote
and grants access to the records as follows:
Health Care Service Records may be released to a physician, psychologist, or
psychiatrist designated in writing by the offender. Additionally, Health Care
Service Records [may be] released to an attorney representing an offender
upon submission of a letter of representation containing the notarized signature
of the offender.
It is clear from the language of Ind. Code § 11-8-5-2 that rather than granting inmates
unequivocal access to their medical records, the legislature has given the DOC discretion to
deny inmates access to confidential information. It is equally clear that the DOC possesses
the discretion to determine which items to classify as confidential. The DOC properly
exercised that discretion by classifying inmate medical records as confidential and thus
restricting direct accessibility to the materials. Accordingly, neither the administrative
regulations promulgated by the DOC nor the DOC's unpromulgated procedure governing
access to inmates' medical records violates the terms of Ind. Code § 11-8-5-2.See footnote
Golitko counters that interpreting Ind. Code § 11-8-5-2(a)(5) as permitting the DOC
to promulgate regulations which deny inmates direct, personal access to their medical records
thwarts the explicit legislative purpose of open access expressed in subsection (a)(1). He
further claims that the result of such a reading is inconsistency between subsections (a)(1)
and (a)(5), in that the former subsection creates a right which the latter effectively
extinguishes. Thus, Golitko asserts, in light of the conflict between the two provisions, the
more specific subsection (a)(1) should prevail over the more general subsection (a)(5).
It is true that the legislature has granted the DOC specific authority to classify as
confidential any medical information which, in its discretion, might adversely affect
[inmates'] emotional well-being. Ind. Code § 11-8-5-2(a)(1). The legislature has likewise
granted the DOC specific authority to classify as confidential any information required by
law or promulgated rule to be maintained as confidential. Ind. Code § 11-8-5-2(a)(5).
However, we disagree with Golitko that the two provisions are conflicting. Although each
subsection allows for confidential classification of inmate medical records, in the case of
subsection (a)(1), the legislature granted the DOC clear discretion to deem medical records
confidential where inmates' emotional well-being would be adversely affected by disclosure.
See Williams, 494 N.E.2d at 370 (The [DOC's] interest in confidentiality is especially great
when disclosure of a document could threaten an individual's safety). In the case of
subsection (a)(5), the legislature delegated to the DOC authority to promulgate rules
classifying as confidential all medical records, regardless of how those records might affect
inmates. Although the information covered by the two subsections overlaps somewhat, the
provisions are far from conflicting,See footnote
and we decline to second-guess our legislature's exercise
of sound policy.
Golitko last contends that the DOC's refusal to grant him direct access to his medical
records deprives him of a property interest without due process of law. Golitko is correct
that property interests may be created and their dimensions defined by existing rules or
understandings that stem from a source independent of the Constitution, such as state law.
See Howard v. Incorporated Town of North Judson, 661 N.E.2d 549, 553 (Ind. 1996)
(quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). However, assuming, without
deciding, that Golitko has a legitimate claim of entitlement to his medical records, the
relevant statutes and administrative regulations provide for adequate due process.
Specifically, Ind. Code § 11-8-5-2(c) provides that medical information which might
adversely affect an inmate's emotional well-being must be disclosed to a physician,
psychiatrist or psychologist designated in writing by the inmate. The DOC must likewise
disclose confidential information upon the order of a court, and where the commissioner
determines that a compelling public interest overrides the interest to be served by
nondisclosure. Ind. Code § 11-8-5-2 (b)(1); (b)(6). Additionally, Ind. Admin. Code tit.
210, r. 1-6-4 provides that medical, psychological, and psychiatric data, among other things,
may be released to a physician, psychiatrist or psychologist designated in writing by the
Finally, Administrative Procedure 01-04-104 provides for access to health care service
records by attorneys, physicians, psychiatrists, and psychologists properly designated in
writing by the inmate.
None of the foregoing provisions prevent designated medical professionals from
sharing medical data contained in inmates' files with those inmates. Accordingly, although
the legislature has granted the DOC authority to deny inmates direct access to their medical
records, inmates who wish to view their records are not precluded from doing so indirectly.
Stated differently, the relevant statutory and administrative rules provide sufficient due
process to inmates, while ensuring that confidential medical information is shared with
inmates only at the discretion of qualified professionals. In sum, we cannot conclude that
the DOC's refusal to grant inmates direct, personal access to their medical records violates
due process. Thus, the trial court did not err in granting summary judgment in favor of the
DOC and in denying Golitko's motion for summary judgment.
FRIEDLANDER, J., and STATON, J., concur.
1 The class was defined as all present and future inmates of the [DOC] confined to a facility operated
by the [DOC] or operated by a private or quasi-private entity under contract with the [DOC]. (R. 33).
2 On December 22, 1998, Golitko filed a Motion to Inform Court of Later Factual Development,
asserting that during the pendency of this appeal, the DOC created a new Administrative Procedure modifying
its practices with respect to inmate access to medical records. Golitko observes and the State concedes that
the Procedure is subject to unilateral alteration by the DOC and thus does not affect the merits of this appeal.
3 Personal information is defined as any information that describes, locates, or indexes anything
about an individual or that affords a basis for inferring personal characteristics about an individual. Ind.
Code § 4-1-6-1(b). An individual's medical history, among other things, qualifies as personal information.
4 Health care service records encompass the following treatments: dental, medical, psychiatric,
psychological, and substance abuse. (R. 58).
5 We acknowledge that in Jackson v. Brinker, 147 F.R.D. 189 (S.D. Ind. 1993), the trial court stated
in passing that [i]t would appear that [DOC] rules 1-6-6(B)(2) and 1-6-4 exceed the authority of § 11-8-5-2
and rule 1-6-2(B) . . . in that they impose a blanket confidentiality protection on all of an offender's medical
records regardless of whether release of the records might adversely affect that person's emotional well-being.
Id. at 199. However, we observe that in so stating, the court did not consider the effect of Ind. Code § 11-8-5-
2(a)(5), the subsection which we find dispositive of the present dispute.
6 We note, for example, that medical data which might adversely affect an inmate's emotional well-
being must be disclosed to a physician, psychiatrist, or psychologist designated in writing by the offender. Ind.
Code § 11-8-5-2(c). In like fashion, Ind. Admin. Code tit. 210, r. 1-6-4 provides for access to any medical
records by a physician, psychologist, or psychiatrist designated in writing by the offender.
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