Request By:
Aaron Rivers, # 283728
Wallens Ridge State Prison
P.O. Box 759
Big Stone Gap, VA 24219-0759Clark Taylor
Department of Corrections
2439 Old Lawrenceburg Road
Frankfort, KY 40602Rebecca Baylous
Department of Corrections
2439 Old Lawrenceburg Road
Frankfort, KY 40602
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 the Department of Corrections violated the Open Records Act in the disposition of Aaron Rivers' November 2, 2001 request for copies of all detainers and progress reports in his inmate file. Mr. Rivers is a Kentucky inmate confined in a Virginia correctional facility under the Interstate Agreement on Detainers. For the reasons that follow, we find that Mr. Rivers' appeal is time barred but that even if it were not the Department's response was substantively correct.
In a response dated November 7, 2001, Department of Corrections Program Director Clark Taylor provided Mr. Rivers with a copy of the only detainer in his inmate file, but denied his request for copies of his progress report. Mr. Taylor explained:
Upon speaking with the Interstate Compact Coordinator for the Virginia Department of Corrections I was advised that it is contrary to their policy to allow the inmate a copy of his progress report. Therefore, I am unable to provide this.
Mr. Taylor verified that Mr. Rivers' progress report reflects only "one disciplinary infraction in Virginia through the date of the report, September 4, 2001 . . . for failure to follow institutional count procedures on January 12, 2001."
In a letter dated November 17, 2001, but received by this office on November 28, 2001, Mr. Rivers unsuccessfully attempted to initiate an open records appeal of the Department's denial of his request. Because he failed to include a copy of his written records request, this office could not consider his appeal. KRS 61.880(2)(a); 40 KAR 1:030 Section 1. On November 30, we notified Mr. Rivers in writing that he failed to perfect his appeal, and returned all attachments to his November 17 letter. In a letter received by this office on December 12, 2001, Mr. Rivers again attempted to initiate an open records appeal but this time failed to include necessary documentation. On December 13, we again notified him that he failed to perfect his appeal, and again returned all attachments to his most recent correspondence. In a letter dated December 22, 2001, but received by this office on January 2, 2002, Mr. Rivers successfully initiated an open records appeal by providing this office with his written request and the Department's written response along with a number of other attachments. On appeal, he maintains that access to his progress report is governed by Kentucky's open records law, and not the Virginia law prohibiting inmate access to public records. In support, he attaches a copy of the "Contract Between the Commonwealth of Virginia and . . . Kentucky for the Implementation of the Interstate Corrections Compact" 1 and a copy of the Interstate Corrections Compact. 2
In a supplemental response directed to this office following commencement of Mr. Rivers' appeal, Department of Corrections Staff Attorney Rebecca Baylous elaborated on the Department's position. She explained:
In withholding the progress report, Mr. Taylor did not rely upon a specific exemption however all procedures under the Kentucky Open Records Act were followed as much as possible in this instance. KRS 197.025(1) permits the Department of Corrections to withhold documents that could be determined to constitute in some manner, a viable security threat. This provision has been used as a basis for the denial of an inmate's request to review his own psychological records. OAG 92-55. Psychological records are similar in many respects to the primary contents of the progress report sought by Mr. Rivers. Further, Mr. Taylor provided the inmate with the information of which he claimed to be in need, although he did not release the actual report. Considering this, in combination with the prohibition on release of this document by the state that generated it, Mr. Taylor's denial was appropriate.
In closing, Ms. Baylous noted that KRS 197.025(3) requires inmates to initiate challenges of open records denials to the Attorney General within twenty days, and that Mr. Rivers "failed to comply with this provision, as [he] was aware of the denial no later than November 10, 2001, and failed to submit his appeal until December 22, 2001."
The threshold question in this open records appeal is whether the appeal is time barred. As the Department correctly observes, KRS 197.025(3) provides:
KRS 61.880 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in Circuit Court.
Both Mr. Rivers and the Kentucky Department of Corrections agree that the governing law for matters relating to Mr. Rivers' request for public records in the custody of the Department of Corrections is Kentucky law. Although Kentucky's Open Records Law, and in particular KRS 61.880, contains no statute of limitations for initiating open records appeals, KRS 197.025(3) requires inmates confined in penal facilities to initiate an appeal of "any denial of an open record" with the Attorney General within twenty days. Such appeals must be initiated "my mailing or otherwise sending the appropriate documents to the Attorney General . . . pursuant to the procedures set out in KRS 61.880(2) . . . ."
KRS 61.880(2)(a) provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
Moreover, 40 KAR 1:030 Section 1 states that "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2) , requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial." As noted above, Mr. Rivers twice unsuccessfully attempted to initiate an open records appeal, failing in both cases to furnish this office with "the appropriate documents . . . pursuant to the procedures set out in KRS 61.880(2)." KRS 197.025(3). When he at last succeeded in initiating his appeal, he was well beyond the twenty day statutory deadline. Accordingly, his appeal is time barred.
Assuming for the sake of argument that Mr. Rivers' appeal had been properly filed in a timely fashion, we believe that the Department's denial of his request would have nevertheless been supported by existing legal authority. 3 In OAG 92-125 and succeeding open records decisions, the Attorney General affirmed the Department of Corrections' denial of inmate requests for documents denominated pre-parole progress reports. We assume that this is the document Mr. Rivers seeks. At page 2 of OAG 92-125, we explained that an inmate's progress report:
contains the caseworker's opinions in such areas as staff interaction, psychological and psychiatric condition, medical condition, and work performance. It may also include an inmate's formal psychological evaluation. Clearly, the pre-parole progress report is a preliminary document containing opinions, observations, and recommendations. It is purely advisory and is one of several documents submitted to the Parole Board for its consideration. Unless it is incorporated into the Parole Board's final decision, it is exempt from public inspection pursuant to KRS 61.878(1)[(j)].
We also noted that some progress reports are prepared by institutional parole officers, and therefore qualify for exclusion under KRS 439.150, incorporated into the Open Records Act by KRS 61.878(1)(l). 4 Thus, in 99-ORD-114, we observed:
KRS 439.510 mandates confidentiality for "all information obtained in the discharge of official duty by any probation or parole officer. . . ." This provision, Kentucky's Supreme Court has observed, is intended "to protect the sources of confidential information . . .," so that valid opinions concerning the general character of an inmate may be obtained. Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987); see also OAG 90-32 (special report prepared by parole officer and tendered to Parole Board is excluded from inspection by KRS 439.510).
99-ORD-114, p. 3. Finally, we have recognized that such a report may fall within the parameters of KRS 197.025(1), also incorporated into the Open Records Act by KRS 61.878(1)(l), if the Commissioner of the Department of Corrections, or his designee, determines that disclosure of the progress report "constitute[s] a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." 99-ORD-114, p. 3. It was upon this basis that the Department, arguing in the alternative, denied Mr. Rivers' request. Had his appeal been timely filed, we would nevertheless affirm the Department's denial of his request on the basis of KRS 197.025(1) .
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 proceedings.
Footnotes
Footnotes
1 Section 2 of the contract provides:
2. GOVERNING LAW
Except where otherwise expressly provided, the laws and administrative rules and regulations of the sending state shall govern in any matter relating to an inmate confined pursuant to this contract and the Interstate Corrections Compact.
2 Article IV.d. of theCompact provides:
Each receiving state shall provide regular reports to each sending state on the inmates of that sending state in institutions pursuant to this compact including a conduct record of each inmate and certify said record to the official designated by the sending state, in order that each inmate may have official review of his or her record in determining and altering the disposition of said inmate in accordance with the law which may obtain in the sending state and in order that the same may be a source of information for the sending state.
Virginia Code Annotated 53.1-216 - 53.1-217; KRS 196.610 and 620.
3 We note that the Department's original response was procedurally deficient insofar as it failed to identify the Open Records Act exemption authorizing nondisclosure of the record withheld and to briefly explain the exemption's application to that record as required by KRS 61.880(1). Ms. Baylous acknowledges the Department's error, and we will not belabor this issue.
4 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.