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 Bell County Forestry Camp violated the Open Records Act in denying Joseph Groves' March 4, 2003, request for "the memorandum which c[a]me down from Department of Corrections stating that anyone with Hepatitis cannot work on outside details." For the reasons that follow, we affirm BCFC's denial of Mr. Groves' request.
In a response dated March 5, 2003, Retha G. Brock, RN, advised Mr. Groves that "[a]ccess to this or any other memoranda is denied according to KRS 61.878(1)(j) [and] KRS 197.025(2)." She explained that BCFC is "not required to comply with a request unless the request is for a record which pertains to that individual." Shortly after he received Ms. Brock's response, Mr. Groves initiated this open records appeal asking that the Attorney General review both BCFC's denial of his request and the memorandum containing the new policy to determine if he was properly transferred from his outside work detail.
In supplemental correspondence directed to this office following commencement of Mr. Groves' appeal, Department of Corrections staff attorney, Emily Dennis, elaborated on the Department's position. She observed:
KRS 61.878(1)(j) exempts from disclosure ". . . preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated and recommended." The Department of Corrections Policies and Procedures are found at 501 KAR 6:020. Some policies are open to public inspection, while others are secured policies that are not open to the public due to . . . safety and security issues unique to correctional facilities. The Department asserts that internal memoranda, such as the memorandum requested by Mr. Groves, are preliminary to policy changes. Internal memoranda that assert a change in prison policy are no more than a means to efficiently operate prisons pending legislative approval of regulations.
Ms. Brock's citation of KRS 197.025(2) was correct pursuant to KRS 61.878(1)(l) of the Kentucky Open Records Act. KRS 61.878(1)(l) exempts from disclosure public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. KRS 197.025(2) states that ". . . 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 that request is for a record which contains a specific reference to that individual." The internal memoranda related to a policy change concerning work assignments for inmates having a serious infectious disease (such as hepatitis) does not "contain a specific reference" to Inmate Joseph Groves.
Having reviewed the record on appeal, we respectfully decline Mr. Groves' request for review of the departmental policy relating to work details for inmates diagnosed with Hepatitis because this issue does not arise under the Open Records Act, and otherwise find that BCFC properly asserted a legally sufficient basis for denying Mr. Groves access to the memorandum containing that policy.
We examine first BCFC's argument that the requested memorandum is not available to Mr. Groves under authority of KRS 197.025(2). As Ms. Dennis correctly observes, that provision previously authorized correctional facilities to withhold records from an inmate unless the records "pertain [ed] to that [inmate] ." In January 2001, the Fayette Circuit Court issued a decision construing KRS 197.025(2) to require the Department of Corrections to furnish an inmate afflicted with Hepatitis C with a copy of policies concerning the treatment plan for said disease. The court reasoned:
Though [the inmate] is not specifically named or identified within the requested documents it is difficult to conceive how documents outlining treatment protocol and availability as well as the nature and type of treatment to those individuals diagnosed with Hepatitis C does not pertain to an individual with said diagnosis.
Lang v. Sapp, 00-CI-03326 (Fayette Circuit Court, 8th Div., January 24, 2001). The circuit court's denial of the inmate's motion to award costs was subsequently appealed, and in a published decision the Kentucky Court of Appeals affirmed the circuit court's decision.
Lang v. Sapp, Ky.App., 71 S.W.3d 133 (2002).
The language of KRS 197.025(2) has since been narrowed to require that the records requested by the inmate "contain a specific reference to the [requesting inmate] ." (Emphasis added.) The net effect of this amendment has been to further curtail the inmate's right of access to records maintained by the Department of Corrections and correctional facilities such as Bell County Forestry Camp. 03-ORD-007. We find that under no construction of KRS 197.025(2), as amended, can it be said that the requested memorandum "contain[s] a specific reference to [Mr. Groves]." Accordingly, we find that BCFC properly denied his request for a copy of the memorandum outlining changes in work programs for inmates diagnosed with Hepatitis, notwithstanding the fact that he has been diagnosed with this illness, because that memorandum does not specifically reference him.
Having determined that KRS 197.025(2) authorized nondisclosure of the record requested by Mr. Groves, we do not address the alternative argument advanced by BCFC.
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.