Request By:
Scotty Skaggs, # 153390 D-3
P. O. Box 9300
Central City, KY 42300-9300Teresa Shanklin
Green River Correctional Complex
P. O. Box 9300
Central City, KY 42300-9300Steve Durham
Department of Corrections
Office of General Counsel
2439 Old Lawrenceburg Road
P. O. Box 2400
Frankfort, KY 40602-2400
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Ryan M. Halloran, Assistant Attorney General
Open Records Decision
This is an appeal under the Open Records Act by Mr. Scotty Skaggs contesting the denial of records he requested from the Department of Corrections. Mr. Skaggs desires to see all records pertaining to a grievance he filed against a correctional officer in connection with an incident that involved Mr. Skaggs and the officer on December 25, 2001. It appears from Mr. Skaggs' appeal and the response of the Department of Corrections that he has filed five (5) separate Open Records Requests in order to obtain the records on his grievance. He contends he is entitled to the records because they relate to him and because Corrections' own regulations require that he be kept informed about his grievance. He cites KRS 61.884 , Corrections Policy Number 14.6 and KRS 421.500 through KRS 421.575. He also cites case law for the proposition that an administrative agency must follow its own regulations. Finally, he contends that Corrections should pay for copies of the records he requests. He cites KRS 61.882(5) for this contention.
Notice of Mr. Skaggs' appeal was distributed to the parties on March 19, 2002. Although Corrections received a copy of the appeal, it did not receive the exhibits to the appeal marked Exhibits A-1, A-2, B, C-1, C-2, D-1 and E-1. Exhibits A-1 through C-2 consist of three Open Records Requests dated February 20, 2002, February 22, 2002, and February 26, 2002. Although these Requests use different wording, it is clear that Mr. Skaggs is asking for information on his grievance concerning the incident of December 25, 2001. The Request dated February 26, 2002 was forwarded to Corrections and was denied on March 6, 2002. The basis of the denial was that there was an ongoing investigation "of a DOC disciplinary proceeding" and hence, the records are exempt under KRS 61.878(1)(h) .
In response to this appeal, Corrections again relies on KRS 61.878(1)(h), the provision exempting ongoing investigations from disclosure. Corrections also contends that KRS 61.878(1)(h) takes priority over KRS 61.884, which Mr. Skaggs cites in support of his contention that he is entitled to a record that relates to him. In Mr. Skaggs' appeal at Exhibit A-1, the February 20, 2002 request, contains a denial by the Green River Correctional Complex Records Custodian based on KRS 197.025(2) which provides that an inmate may not have any record unless that record pertains to that individual. In that request, Mr. Skaggs wanted copies of witness statements and documents concerning the correctional officer. All this can be distilled into two issues:
1. Do the records requested relate to Mr. Skaggs?
2. If so, does the fact that there is a pending investigation exempt the records in any case?
First, we decide that with the exception of statements and documents about others where he is not mentioned, the records relate to Mr. Skaggs because he filed the grievance about an incident that included him. As Mr. Skaggs points out, KRS 61.884 gives him access to any public record relating to him, or in which he is mentioned by name. In its reply, Corrections does not contest this but points out that the exemptions contained in KRS 61.878 take priority over KRS 61.884. We agree. By its own language, KRS 61.884 is subject to the provisions of KRS 61.878. KRS 61.878(1)(h) exempts records of law enforcement agencies or agencies involved in administrative adjudication from public disclosure where the records identify informants or would harm an agency by their premature release.
In this case, Corrections is conducting an investigation of "a DOC disciplinary proceeding" . The nature of the charges contained in the grievance could lead to administrative or criminal sanctions. This is the type of investigation covered by the exemption. The inmate grievance procedure cited by Mr. Skaggs provides only that "the grievant shall have copies of all his documents". Policy No. 14.6 VI. M. 2.b. effective November 17, 2000, and incorporated into regulation at Section 1 of Administrative Regulation 501 KAR 6:020. The policy also limits access to the grievance file to the Grievance Aide, Grievance Coordinator, the Warden and individuals "involved in the active formal resolution process . . .upon request to the Coordinator...." It is unclear from the record whether the grievance has reached the formal resolution process. Until the formal process begins, the grievance file is "under consideration", and Mr. Skaggs is "involved in the active formal resolution process", he is limited to copies of his own documents. Mr. Skaggs also cites KRS 421.500 through KRS 421.575 which is the Crime Victim and Witness Protection Law. There is nothing tying the inmate grievance procedure of the Department of Corrections to that law. Without an express statutory tie giving Corrections the authority to adjudicate the crimes covered under KRS 421.500 et seq ., jurisdiction of any criminal adjudication resides exclusively with the Courts. KRS 23A.010(1) and KRS 24A.110. With regard to Mr. Skaggs' request that Corrections pay copying costs, this office has no authority. The power to impose sanctions also resides with the Courts. KRS 61.882.
Accordingly, we decide that the Department of Corrections was justified in denying Mr. Skaggs full access to records concerning his grievance during a pending administrative investigation of a disciplinary proceeding. He may only have copies of those documents which he himself generated.
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.