Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Department of Corrections violated the Open Records Act in denying inmate Aaron Rivers' December 8, 2003 request for "[p]hotographs of Jerry Dailey that are on file with this agency." For the reasons that follow, we affirm the Department's denial of Mr. Rivers' request on the basis of KRS 197.025(2).
In her December 18, 2003 response, Assistant Jefferson County Attorney Suzanne D. Cordery denied Mr. Rivers' request "because the record requested does not specifically refer to [him]." She explained:
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) provides as follows:
(Emphasis in original.)
Shortly thereafter, Mr. Rivers initiated this appeal. He argued:
"[I]n an early opinion, the Attorney General recognized that "the exemptions [codified at KRS 61.878(1)] may be invoked according to the nature of the records, and not according to the person who is requesting the inspection." (See OAG 82-233, p. 3).
Additionally, Mr. Rivers cited
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), for the proposition that "analysis of the propriety of an agency's denial of an open records request 'does not turn on the purpose for which the request for information is made or the identity of the person making the request, '" (emphasis added), and OAG 79-546 for the proposition that "an inmate has the right to inspect public records the same as anyone else."
It was Mr. Rivers' position that the requested record "is not a written document . . . [but is instead] an image (photograph) ," and "the image makes a 'specific reference' to me because I contend it is me." He explained:
[I]t is my image that the photograph depicts. I was arrested under a different name and social security number. I am trying to establish my true identity right now and that is the reason I need the photo.
Mr. Rivers seeks to prove "to Virginia authorities 1 that Aaron Rivers is also known as Jerry Dailey and has been arrested under both names and social security numbers." 2
In supplemental correspondence directed to this office following commencement of Mr. Rivers' appeal, Ms. Cordery elaborated on the Department's position. She advised:
Aaron Rivers states for the first time on appeal that the requested photograph is actually Aaron Rivers' photograph. Aaron Rivers, however, has never submitted sufficient information to support this highly unlikely claim. Moreover, any photograph under the name of Jerry Dailey nevertheless does not make specific reference to Aaron Rivers.
Because Mr. Rivers presents no proof, beyond a bare allegation, that he and Jerry Dailey are the same person, we affirm the Department's denial of his request on the basis of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
We begin by noting that the authorities upon which Mr. Rivers relies, namely, OAG 79-546, OAG 82-233, and Zink v. Commonwealth, pre-date enactment of, and are trumped by, KRS 197.025(2), at least as the cited authorities relate to inmates confined in jails or facilities under the jurisdiction of the Kentucky Department of Corrections, including inmates, like Mr. Rivers, who are confined in out-of-state correctional facilities under the Interstate Agreement on Detainers. That provision, which was amended in 2002, previously authorized correctional facilities and jails to withhold records from inmates unless the records "pertain[ed] to that [inmate] ." The 2002 amendment to the provision further circumscribed inmates' rights of access by requiring correctional facilities and jails to disclose only those records requested by an inmate that "contain a specific reference to the requesting inmate] ." (Emphasis added.) The net effect of this amendment has been to curtail inmate access to records maintained by correctional facilities and jails. See 03-ORD-007; 03-ORD-073; 03-ORD-091. To this extent, the identity of the requester is directly relevant, and inmates are not entitled to the same treatment as other requesters under the Open Records Act when they request records that do not contain a specific reference to them.
We find unpersuasive Mr. Rivers' attempt to distinguish the requested photograph, or image, from a written document, and his argument that only the latter is governed by the Kentucky Open Records Act. KRS 61.870(2) defines the term public record as "all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " (Emphasis added.) Photographs which are prepared, owned, used, in the possession of or retained by public agencies are public records for open records purposes, though they may qualify for protection from public inspection under one or more of the exceptions to public inspection, including KRS 61.878(1)(l). It is this provision which operates in tandem with KRS 197.025(2) to prohibit Mr. Rivers from obtaining copies of "photographs of Jerry Dailey."
Notwithstanding his assertion that he and Jerry Dailey are the same person, Mr. Rivers presents no proof supporting his claim of entitlement to records that purportedly contain a specific reference to him. It is not incumbent on the Department to disprove this assertion. If, in fact, Mr. Rivers has illegally assumed a dual identity and now seeks to eliminate the resulting confusion by accessing a record which bears his likeness under an assumed name, he must accept the consequences of his acts. In this case, those consequences are denial of access to that photograph because it does not contain a specific reference to him but instead references Jerry Dailey. As we have observed in past decisions, "it seems incongruous to attribute to the General Assembly an intention to require public agency disclosure of . . . records which would facilitate violation of the law and undermine its enforcement." 95-ORD-121, p. 9. Here, as in past decisions, we decline the invitation to do so and affirm the Louisville Metro Department of Corrections' denial of Mr. Rivers' request.
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.
Aaron RiversWallens Ridge State PrisonP.O. Box 759Big Stone Gap, VA 24219-0759
Suzanne D. CorderyAssistant Jefferson County Attorney600 West Jefferson Street, 2nd FloorLouisville, KY 40202
William P. O'BrienDirector of Civil DivisionJefferson County Attorney's Office1001 Fiscal Court Building531 Court PlaceLouisville, KY 40202
Footnotes
Footnotes
1 Mr. Rivers is currently confined at Wallens Ridge State Prison located in Big Stone Gap, Virginia).
2 On appeal, Mr. Rivers also contests Ms. Cordery's authority to deny his request for "a record in the custody of an agency she doesn't work for [sic]." We reject this argument, noting that the Department is Ms. Cordery's client, and she the Department's attorney, for purposes of rendition of legal services and that this office has approved the agency practice of processing open records requests through its department of law or legal advisor to "insure[] uniformity and adherence to the law." See 93-ORD-134, p. 7. Moreover, although the "Open Records Policy of the Louisville/Jefferson County Metro Government" identifies the Director of Finance as that public agency's official custodian of records, KRS 61.880(1) provides that the agency's "response shall be issued by the official custodian or under his authority . . . ." (Emphasis added.) Mr. Rivers presents no proof that Ms. Cordery exceeded her delegated authority in responding to his request.