An unusual development in open records analysis announced today as Attorney General Andy Beshear issued an open records decision that contradicts —without distinguishing, modifying, or withdrawing — an open records decision issued in December, 2018.

Here the AG bypassed, without legal analysis, the exception relied upon by the Department of Corrections (the previously untested KRS 61.878(1)(p), authorizing nondisclosure of "communications of a purely personal nature unrelated to any governmental function"), and constructed an analysis based on an exception not cited by the agency (KRS 197.025(2), authorizing correctional facilities to withhold a record from an inmate unless the record "contains a specific reference to [the inmate requesting the record]").

The public agency has the burden of proving that its denial of a request is proper under KRS 61.880(2)(c). This is what the AG is statutorily charged with the duty to review. Therefore, the approach to the inmate appeal the attorney general took here is questionable.

The AG's analysis of the exception invoked on behalf of Corrections is even more questionable. Instead of treating KRS 197.025(2) as a basis for denying access to an inmate's request for records in which he or she is not specifically referenced, the AG converted the exception to disclosure into a mandate requiring disclosure to an inmate of any record which contains a specific reference to him — in this case, pictures from his "JPay account."

(JPay is a private corrections related service provider that has contracted with the Department of Corrections to provide services to inmates that include email.)

The AG thus declares that KRS 197.025(2) "means that 'in spite of' the exemptions listed in KRS 81.878[sic], the Department of Corrections can withhold records from inmates *unless* the requested records 'contain a specific reference to' the requesting inmate."

A permissive exception, under this reading, becomes a mandatory disclosure requirement.

Compounding the error of this unprecedented interpretation of an inmate's rights under the open records law, in December 2018, the AG declared that JPay records were not "public records" for open records purposes because they do not relate to a public agency's "functions, activities, programs, or operations" and are therefore not subject to the open records law.

In that open records decision, the AG held that a correctIonal facility properly denied an inmate access to JPay photos. That open records decision can be found at:

https://ag.ky.gov/orom/2018/18ORD239.doc

So which is it? JPay records must be disclosed to an inmate because they contain a specific reference to the inmate or JPay records must never be disclosed to an inmate because they are not public records?

Why, if he wished to depart from one poorly reasoned decision and adopt an even more poorly reasoned decision, did the AG not distinguish, modify, or withdraw the earlier inconsistent decision?

And why didn't the AG resolve the appeal on the basis of the exception asserted — KRS 61.878(1)(p) — as the open records law requires him to do?

The AG's resolution here is inconsistent and potentially disastrous. It creates two conflicting lines of authority as "guidance" to the Department of Corrections, and penal facilities across the state, and it establishes an inmate's absolute right to any record that contains a specific reference to him or her all other exceptions to inspection notwithstanding.

While we applaud any open records decision favoring access, we are disinclined to do so when it is based on a tortured reading of multiple statutes.