Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Justice and Public Safety Cabinet 1 violated the Kentucky Open Records Act in denying the request of Donald Gene Sargent, an inmate at Marion Adjustment Center, for a copy "of the interpretation [of the "work-credit" law] that existed prior to the January 2004 revision. " Because the requested record does not contain a specific reference to Mr. Sargent, we conclude that the Department properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 2 in denying his request.
On a standard form dated March 29, 2004, Mr. Sargent framed his request as follows:
The Office of Corrections['] General Counsel put out an interpretation of the "work-credit" law as a "Revision" dated January 2004. I want a copy of the interpretation that existed prior to the January 2004 revision. That interpretation directly affects me.
In a timely response, Emily Dennis, Cabinet Staff Attorney, denied Mr. Sargent's request. As correctly observed by Ms. Dennis:
KRS 197.025(2) states that the Department of Corrections is not required to comply with a request for any record from any inmate confined [in] any facility unless the request is for a record that contains a specific reference to that individual. KRS 197.025(2) is applicable to your request as an enactment of the General Assembly (See KRS 61.878(1)(l)).
Mr. Sargent now appeals from the Cabinet's denial of his request.
On appeal, Mr. Sargent contends that the requested records "directly affect [his] sentence and additionally t[he] gratuity pay" that he will receive in prison. In his view, the denial of his request "means that Corrections is withholding from inspection a document that to some extent determines correct calculation of the amount of time [he] will be incarcerated. There is, [as] far as [he] can tell, no privacy interest, nor would such record be confidential" and he can "find no exception which is applicable listed in KRS 61.878." According to Mr. Sargent, "it would seem that the exception stated by KRS 197.025(2) was never intended by the Legislature to allow the agency to conceal from examination materials concerning the calculation of the inmate's sentence duration." Finally, "the exception from disclosure contained within KRS 197.025(2) appears to have NO application in this instance because the requested record certainly does apply to the inmate requesting the record."
In supplemental correspondence received by this office after Mr. Sargent initiated the instant appeal, Ms. Dennis argues that Mr. Sargent "incorrectly interprets KRS 197.025(2)." According to Ms. Dennis, her "response correctly informed him that KRS 197.025(2) states that the Department of Corrections is not required to comply with the request for any record from any inmate confined in a facility unless the request is for a record that contains a specific reference to that individual. (Emphasis added)." We agree. Elaborating upon her earlier reasoning, Ms. Dennis argues: "It matters not whether a record 'applies' to an individual inmate. If the record does not contain a specific reference to the inmate, then it is exempt from disclosure to the inmate under KRS 197.025(2)." Ms. Dennis further contends that the interpretation of the "work-credit" law issued by the Office of General Counsel for the Department is "exempt from disclosure pursuant to KRS 61.878(1)(l), KRS 447.154, CR 26.02, and KRE 503, because it is confidential information protected by the attorney-client privilege and [constitutes] work product," and the Department "has no obligation to provide an inmate an interpretation of the law." While we are inclined to agree with Ms. Dennis on the merits of this argument as well, our resolution of the issue regarding application of KRS 197.025(2) renders further consideration of this argument unnecessary.
In response, Mr. Sargent characterizes Ms. Dennis's reply "as less than candid as the actual wording of KRS 197.025(2) is 'unless the request is for a record which pertains to that individual.'" According to Mr. Sargent, she "converts the general exception to a specific exclusion which would support her non-disclosure, but her interpretation is in fact contrary to the statute." In addition, Mr. Sargent mistakenly contends that Ms. Dennis has violated KRS 61.880(1) "by failing to identify the 'specific exception'" that applies to the record withheld since KRS 61.878(1)(l) is "a general catch-all[.]" To the contrary, Ms. Dennis properly relied upon the current version of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Mr. Sargent's request.
To begin, Mr. Sargent's argument is premised on language derived from the former version of KRS 197.025(2). 3 Although that provision previously authorized correctional facilities to withhold a record from an inmate unless the record "pertain [ed] to that individual," the language of KRS 197.025(2) has since been narrowed to stipulate that the record requested by the inmate "contain a specific reference to that individual" as correctly argued by Ms. Dennis. (Emphasis added). 03-ORD-073, p. 3. "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" under its supervision. Id.
Because the Cabinet's interpretation of the "work-credit" law does not contain a specific reference to Mr. Sargent as now required by KRS 197.025(2), he is not entitled to inspect or receive a copy of the record, notwithstanding the fact that the record may "apply" to him. Whatever hardship Mr. Sargent believes this statute imposes on him, he is nevertheless precluded from inspecting, or receiving copies of, records which do not contain a specific reference to him by the express language of this provision. 99-ORD-161, p. 2. As a result of the amendments to KRS 197.025(2), inmates no longer have "the same right to inspect public records as any other person," at least with respect to records in the custody of the Cabinet. Id., p. 3. Accordingly, the Cabinet did not violate the Open Records Act in denying Mr. Sargent's request on the basis of KRS 197.025(2).
A party aggrieved by this decision may appeal it by initiating an 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. Distributed to:
Donald Gene Sargent, #85147Marion Adjustment CenterSMU 20595 Raywick RoadSt. Mary, KY 40063
Emily DennisJustice and Public Safety CabinetOffice of Legal Services2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 Because the Department of Corrections was recently renamed the Justice and Public Safety Cabinet, the names are used interchangeably throughout this opinion.
2 Among the public records excluded from application of the Open Records Act by KRS 61.878(1) are: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l).
3 As amended in 1998, KRS 197.025(2) provided:
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 pertains to that individual.
In construing this broader language, the Attorney General observed:
KRS 197.025 underwent significant revision in the 1998 legislative session. As amended, KRS 197.025(2) now limits an inmate's access to records which do not pertain to him or her. While there may be occasions when we are presented with a close [question], [we will defer to the correctional facility's judgment when the records obviously do not pertain to the inmate] . To hold otherwise would open the door to . . . tenuous claims thereby subverting the intent of the recent enactment.
99-ORD-161, p. 2, citing 98-ORD-150, p. 3. In 03-ORD-007, the Attorney General adopted the reasoning of 98-ORD-150 but modified the decision to the extent that it did not reflect the most recent amendment. Given the level of deference afforded to the correctional facility under the less stringent standard, it is highly probable that the result would be the same under the 1998 version although that issue is obviously moot.