Request By:
Ms. Betty Stuart
Offender Records Specialist
Kentucky State Penitentiary
Eddyville, Kentucky 42038-0128
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Brian Thurman, an inmate at Kentucky State Penitentiary (KSP), has appealed to the Attorney General, pursuant to KRS 61.880, KSP's denial of his request to inspect all incident reports and officers' reports arising out of an occurrence on December 27, 1991. On that date, Mr. Thurman was charged with "possession of dangerous contraband," when officers discovered that he had concealed an "institutional sticker," or handmade knife, in his left sock. He was subsequently found guilty and assessed a penalty of ninety days in disciplinary segregation.
Mr. Thurman submitted his request to the Inmate Records Office on January 9, 1992. You responded on the same day, advising him as follows:
You will need to ask your caseworker for a 'proper' C.P.O. Requested material is not yet present on institutional file. It takes anywhere from 2-3 weeks (from date of incident report) for it to get to this office. It could take longer when G.T. is taken.
Although it was your apparent intent to release the records, on January 10, 1992, Lt. H. Mayfield issued a memorandum to Mr. Thurman in which he stated:
Your request for officer reports, etc., is denied based on the following:
1. You were found guilty based on the facts stated and witnessed in your incident report.
2. Information contained in the staff reports are confidential since they contain information which could jeopardize the security of this institution.
Thus, you were pre-empted in the discharge of your duties as offender records specialist by Lt. Mayfield.
In his letter of appeal to this Office, Mr. Thurman notes that KSP "did not follow correct procedure in denying [his] request . . . [since he cannot locate any] exemption that applies." He asks that this Office review KSP's actions to determine if said actions were consistent with the Open Records Act. For the reason set forth below, we conclude that KSP's actions were only partially consistent with the Open Records Act.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
As official custodian of records, you promptly responded to Mr. Thurman's request, advising him that he should obtain a "C.P.O.," authorizing payment from his inmate account for copying costs. Pursuant to KRS 61.872(4), you further advised him that although the requested records were not immediately available, they should arrive in your office in two to three weeks. KRS 61.872(4) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.
Thus, your actions as custodian were entirely consistent with the Open Records Act.
Lt. Mayfield's denial does not constitute final agency action inasmuch as it was not "issued by the official custodian or under [her] authority." Accordingly, his January 10, 1992, memorandum is a nullity. No denial having been issued, this appeal is not ripe for review by the Attorney General. Mr. Thurman need only obtain the C.P.O., per your instructions, in order to secure the requested documents.
We urge KSP to review its existing open records policy. KRS 61.870, et. seq., contemplates the appointment of an official custodian of records to whom all requests are directed for proper disposition. It is imperative that every employee of KSP acknowledge the authority of the offender records specialist in handling these requests.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Brian Thurman. Both KSP and Mr. Thurman may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).