Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from Eastern Kentucky Correctional Complex's denial of inmate James M. Perry's October 21, 1997, request for a copy of his FBI rap sheet. On October 24, 1997, EKCC's records custodian, Michelle Nickell, denied Mr. Perry's request, advising him that "EKCC is not the official custodian of that record." Ms. Nickell suggested that he obtain a copy of his rap sheet from the FBI, and furnished him with the FBI's address.
The issue in this appeal is whether EKCC violated the Open Records Act in denying Mr. Perry's request. For the reasons which follow, we find that although its original response was procedurally deficient, EKCC properly denied the request on the basis of KRS 61.878(1)(k) and 28 USC § 534.
KRS 61.880(1) establishes procedural guidelines for public agency response to an open records request. That statute 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 record 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.
In responding to Mr. Perry's request, Ms. Nickel failed to cite the specific exception authorizing nondisclosure and briefly explain how the exception applies to the record withheld. As the Kentucky Court of Appeals recently observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). The Court noted that a "limited and perfunctory response" does not "even remotely comply with the requirements of the Act--much less . . . amount[] to substantial compliance." Id. In Edmondson, the public agency cited KRS 61.878(1)(k) to sustain its denial, but failed to cite the relevant federal statute or regulation supporting nondisclosure. Ms. Nickel failed to cite both the state and the federal statute authorizing the withholding of Mr. Perry's FBI rap sheet. We strongly encourage EKCC to review KRS 61.880(1) and Edmondson v. Alig, above, to insure that future responses conform to the Open Records Act.
In subsequent discussions, the Corrections Cabinet identified the relevant state and federal statutes supporting nondisclosure. The Cabinet relied on KRS 61.878(1)(k) and 28 USC § 534.KRS 61.878(1)(k) excludes from the application of the Open Records Act "all public records or information the disclosure of which is prohibited by federal law or regulation [.]" This provision operates in tandem with 28 USC § 534 to prohibit disclosure of FBI rap sheets by a state correctional facility like EKCC. 28 USC § 534(a)(1) and (4) imposes upon the United States Attorney General the duty to "acquire, collect, classify, and preserve identification, criminal identification, crime, and other records" 1 and to "exchange such records and information with, and for the use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions." (Emphasis added.) Pursuant to 27 USC § 534(b), "the exchange of records and information authorized [by the foregoing provision] is subject to cancellation if dissemination is made outside the receiving departments or related agencies." Under this provision EKCC risks cancellation of its records exchange arrangement with the FBI if it releases Mr. Perry's rap sheet to Mr. Perry or anyone else other than authorized officials at EKCC and the Corrections Cabinet. Thus, EKCC is prohibited from providing Mr. Perry with a copy of his rap sheet. We affirm its denial of Mr. Perry's request.
28 CFR § 16.32 and § 16.33 establish an extensive mechanism by which the subject of an FBI rap sheet may obtain a copy of that document. These regulations require proof of identity, including name, date and place of birth, and fingerprint impressions, as well as a $ 18.00 fee. It is under these regulations that Mr. Perry must proceed if he wishes to obtain a copy of his FBI rap sheet.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes