Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Luther Luckett Correctional Complex violated the Open Records Act in responding to Alfred Hawks's December 8, 1998, request for a copy of the facility's lab certification. For the reasons that follow, we find that although its response was procedurally deficient, LLCC properly denied Mr. Hawks's request.
LLCC records custodian Cindy Hall denied Mr. Hawks's request on the standard request and disposition form which he had used in making his request. That form, a copy of which was furnished to this office by LLCC and the Department of Corrections, indicates that his request, although dated December 8, was logged in on December 17. Ms. Hall's denial, dated December 21, 1998, was based on KRS 61.872. She explained:
Your open record's [sic] request is denied according to KRS 61.872 which states the record requested must pertain to the individual making the request. In review of this request [sic] there is nothing shown that the requested documents deal directly with your person [sic].
Ms. Hall forwarded this response to Mr. Hawks, along with a record indicating that his inmate account would be refunded $ 5.00 for prepaid copying charges. 1 Although this response did not conform to the procedural requirements set forth at KRS 61.880(1), we find that LLCC advanced a legally supportable basis for denying Mr. Hawks's request.
In a follow-up letter to this office, Department of Corrections staff attorney Tamela Biggs amplified on LLCC's position. She acknowledged that Ms. Hall incorrectly cited KRS 61.872 as the basis for denying Mr. Hawks's request. Ms. Biggs conceded that Ms. Hall should have instead cited KRS 197.025(2), limiting inmate access to records which pertain to the inmate making the request. Ms. Biggs argued that Mr. Hawks's request for a copy of the lab certification was properly denied because it did "not pertain to the inmate making the request." We agree.
KRS 197.025(2) provides:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from an inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which pertains to that individual. 2
Pursuant to KRS 197.025(2), Mr. Hawks is prohibited from inspecting records which do not pertain to him. Because the lab certification for which he asked does not pertain to him, he is not entitled to inspect or receive a copy of it. "To hold otherwise," we have noted, "would open the door to other tenuous claims thereby subverting the intent of the recent enactment." 98-ORD-150, p. 3. We therefore conclude that LLCC properly denied Mr. Hawks's request.
In closing, we note a number of procedural irregularities in LLCC's response. The first, and most obvious, was its failure to identify the correct statute authorizing nondisclosure of the requested records, namely, KRS 197.025(2). In addition, LLCC failed to cite the exception to public inspection, codified at KRS 61.878(1)(a) through (l), through which KRS 197.025(2) is incorporated into the Open Records Act. KRS 61.880(1) provides that "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." In this case, the relevant exception is KRS 61.878(1)(l) which authorizes nondisclosure of records made confidential by enactment of the General Assembly. A properly worded denial must include citation to both KRS 61.878(1)(l) and KRS 197.025(2), and a brief explanation of how these statutes apply. We urge LLCC to review KRS 61.880(1) to insure tht future responses conform to the Open Records Act.
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
1 Mr. Hawks maintains that the only response he received from LLCC was the record evidencing a refund to his inmate account. LLCC refutes this, and offers in support of its position that a timely response was sent a copy of the completed request and disposition form dated December 21. Given this documentary evidence, we assume that the response was sent even if, through inadvertence or error, it was never received.
2 KRS 197.025 was also amended to permit the Department of Corrections up to five business days to respond to any records request. KRS 197.025(7).