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 Montgomery County Jailer violated the Open Records Act in the disposition of James N. Harrison's April 18, 2003 request for policies and procedures of the Montgomery County Regional Jail relating to recreational services, access to legal materials, rights to medical treatment, offenses and penalties, permissible and prohibited items, and items which may be purchased in the canteen. Having received no response to his request, Mr. Harrison initiated this appeal to the Attorney General on May 16, 2003. For the reasons that follow, we find that the Jailer's belated response to Mr. Harrison's request was procedurally deficient but substantively correct.
On May 27, 2003, Montgomery County Jailer Everett Dewayne Myers denied Mr. Harrison's request, simultaneously confirming this decision by letter to this office. Mr. Myers relied on KRS 197.025(2), 1 asserting that he was not required to comply with a request "from any inmate confined in a jail or any facility . . . unless the request is for a record which contains a specific reference to that individual." Although the Montgomery County Jailer violated KRS 61.880 in failing to issue a timely response to Mr. Harrison's open record request, we affirm his belated denial of that request.
The Montgomery County Jailer failed to respond to Mr. Harrison in writing and within the required time frame for agency action. For purposes of calculating the response time for the Kentucky Department of Corrections, KRS 197.025(7), as amended by the 1998 General Assembly, extended the standard three day deadline for response to five days. That statute provides:
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released.
The term "department" is defined in Chapter 197 as the Department of Corrections. KRS 197.010(3). Therefore, it is unclear whether this provision extends to the Montgomery County Regional Jail. Compare, KRS 197.025(1) providing that "KRS 61.884 and 61.878 to the contrary notwithstanding, no person including any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person" (emphasis added), and 00-ORD-182, affirming Grayson County Jailer's denial of request for records posing a threat to security on the basis that the provision extends to jails and facilities "under the jurisdiction of the department [of Corrections]." It appears that Mr. Harrison's request was mailed to the jailer on or about April 18, 2003. The jailer did not respond to Mr. Harrison's request until May 27, 2003, and only after he received notification of this open records appeal. Over one month elapsed between the date of Mr. Harrison's request and the date on which Mr. Myers responded, exceeding the standard three day response time, and assuming arguendo that KRS 197.025(7) applies to the jail, exceeding the five day response time. We urge the Montgomery County Regional Jail to implement policies aimed at insuring timely written responses to open records requests.
Turning to the substantive issue in this appeal, we find that the jailer properly relied on KRS 197.025(2) in denying Mr. Harrison's request for jail policies and procedures. As amended, that statute 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 contains a specific reference to that individual. 2
In construing this provision, the Attorney General recently observed:
By its express terms, this provision applies to requests for records submitted by inmates "confined in a jail or any facility . . . under the jurisdiction of the department [of Corrections]." The statute provides that "the department shall not be required to comply . . ." with such requests unless the record requested specifically references the requester. Although the statute does not specifically provide that jails or facilities under the Department's jurisdiction are not required to comply with such requests, we are unwilling to construe that statute so strictly that it yields the absurd result that an inmate can obtain from a jail those records which he cannot obtain from the Department. Given the broad oversight role statutorily assigned to the Department relative to jails, 3 and the common interest of these agencies in avoiding disclosure of records that implicate security concerns and in stemming the swelling tide of frivolous inmate requests, we find that an interpretation of KRS 197.025(2) that does not include jails is legally unsupportable in light of the underlying purpose of KRS 197.025 taken as a whole.
03-ORD-074, pp. 3, 4.
Under no construction of KRS 197.025(2), as amended, can it be said that the requested policies and procedures "contain a specific reference to [Mr. Harrison]." Accordingly, we find that the Montgomery County Jailer properly denied his request for these policies, notwithstanding his tenuous claim that they relate to him, because the policies and procedures do not specifically reference him.
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.
James N. Harrison, LMR 12906Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Everett Dewayne MyersMontgomery County Jailer 751 Chenault LaneMount Sterling, KY 40353
Paul D. CowdenMontgomery County AttorneyOne Court StreetP.O. Box 96Mount Sterling, KY 40353
Footnotes
Footnotes
1 Incorporated into the Open Records Act by operation of KRS 61.878(1)(l) which authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
2 With regard to the 2002 amendment to KRS 197.025(2), this office recently observed:
That provision previously authorized correctional facilities to withhold records from an inmate unless the records "pertain[ed] to that [inmate] ."
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 . . . .
03-ORD-73, p. 3; see also 03-ORD-003; 03-ORD-074.
3 See, for example, KRS 196.030(1)(e) (vesting the Department with the duty to administer and enforce KRS Chapter 441 "relating to the development and enforcement of jail standards; training of jailers and jail personnel, and jail planning and construction"); KRS 441.055 (vesting the Department with the duty to adopt and revise jail standards relating to health and safety, fire safety, operations, recordkeeping, administration, training, treatment of prisoners, medical care, jail equipment and construction, and standards review process); and KRS 441.064 (vesting the Department with the duty to employ jail consultants, inspect jails, and notify jailers of deficiencies).