Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Department of Corrections properly relied on KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Freeland Riley's requests for any and all records pertaining to Operation Night-Vision.
In the Department's response to Mr. Riley's letter of appeal, Tamela Biggs, Staff Attorney, explained, in pertinent part:
The request dated 21 April 2000 sent to the Commissioner was deferred to the Office of General Counsel for response. On 24 April 2000, I denied Mr. Riley's request pursuant to KRS 197.025(2). A second request dated 27 April 2000 was received in this office on 2 May 2000. I responded on 9 May 2000 (letter incorrectly dated 9 April), reiterating that the request was denied pursuant to KRS 197.025(2). In order for an inmate to obtain a copy of a public record, it must pertain to him. The "night vision" agreement does not pertain to the inmate. The document is a contractual agreement between the Division of Probation and Parole and local law enforcement regarding the structure, operation and sharing of services and/or personnel under the program. The fact that Mr. Riley was found to be in violation of the terms of his release by his supervising officer and local law enforcement during a home visit does not entitle him to a copy of the contract.
KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), provides:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any 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.
In interpreting this provision, the Attorney General has observed:
KRS 197.025(2) limits an inmate's access to records which do not pertain to him or her.
That these documents may be relevant to [a pending legal action against a correctional facility] does not alter our conclusion. While there may be occasions when we are presented with a closer issue, these records simply do not pertain to [the requester]. To hold otherwise would open the door to other tenuous claims thereby subverting the intent of [KRS 197.025(2)].
98-ORD-150, p. 2, 3. "Whatever hardship [an inmate] believes this statute works upon him, he is nevertheless restrained from inspecting, or receiving copies of, records which do not pertain to him." 99-ORD-161, p. 2.
We believe that 99-ORD-161, as it relates to KRS 197.025(2), is controlling. A copy of that decision is attached hereto and incorporated by reference. Accordingly, we find that the Department properly denied Mr. Riley's request.
With respect to the procedural requirements of the Open Records Act, as they pertain to correctional facilities, KRS 197.025(7) provides:
upon receipt of a request for any record, the department shall determine with five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the records shall be released.
The Department acknowledged that a violation of the cited provision occurred in earlier requests made by Mr. Riley and we will not belabor this issue. To ensure that future responses to open records requests conform to the Open Records Act, the Department advised that the procedural requirements under the Act and KRS 197.025(7) has been fully explained to the persons involved in those requests.
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.