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 Eastern Kentucky Correctional Complex violated the Open Records Act in the disposition of Tommy Southard's March 23, 2005, request to inspect his "complete inmate record file." For the reasons that follow, we find that EKCC's disposition of Mr. Southard's request was procedurally deficient but substantively correct.
In a response dated March 24, 2005, EKCC Offender Records Specialist Tami Williams denied Mr. Southard's request explaining that the complete file contains exempt documents, and suggested that Mr. Southard resubmit his request for his "file minus the exempt documents." Shortly thereafter, Mr. Southard initiated this appeal asserting that EKCC proffered "no valid basis" for denying his request and noting that EKCC did not identify the exempt records contained in the file. Further, he argued, EKCC violated the Act by suggesting that he submit an amended request for nonexempt records in his inmate file rather than "separating the exempt material and letting [him] view the rest, pursuant to KRS 61.878(4) . . . and 98-ORD-33, 95-ORD-113, 95-ORD-82, OAG 91-48, and OAG 91-35."
In supplemental correspondence directed to this office following commencement of Mr. Southard's appeal, Justice and Public Safety Cabinet Staff Attorney Emily Dennis notified this office that on April 21, 2005, EKCC:
provided Mr. Southard with the opportunity to inspect his entire institutional record folder compiled from 8/05/2002 to present, with the exception of the following records which are exempt from disclosure under the Open Records Act:
Ms. Dennis provided this office with a copy of the letter directed to Mr. Southard, explaining the statutory bases for EKCC's partial denial of his request, to which he affixed his signature, acknowledging that he was afforded an opportunity to review the nonexempt records in his inmate file. It was EKCC's position that "[t]his resolves Mr. Southard's claim pending in the Attorney General's open records appeal . . . [and that the appeal] should be considered moot . . . [per] 40 KAR 1:030 1 Section 6." Because EKCC's resolution of this appeal consisted of a partial denial of the records requested, and because Mr. Southard has not withdrawn that appeal, we do not agree that the issues raised were mooted by disclosure of the nonexempt records in his file. Having considered those issues, we find that EKCC's original response to Mr. Southard's request was procedurally improper but that its substantive disposition of that request was ultimately correct.
In 03-ORD-117, this office held that Western Kentucky Correctional Complex violated KRS 61.880(1) in denying an inmate request for his file because the request was "too broad and overly vague," and in suggesting that he resubmit his request for records, describing those records with reasonable particularity. We relied on 03-ORD-012 in which the Attorney General held that a request for a personnel file was sufficiently specific and that it was incumbent on the agency to which the request was directed "to determine what is and is not subject to Open Records . . .[,] disclose the nonexcepted records and identify, in writing, any responsive records withheld, cit[ing] the statute(s) authorizing the withholding, and briefly explain[ing] how the statute applies to the record withheld. " 03-ORD-117, p. 3 citing 03-ORD-012, p. 7. On this basis, we concluded that WKCC:
should provide [the inmate] with access to those records in his inmate file which are not exempt from disclosure under KRS 61.878(1) or other applicable statutes. For records in the inmate file for which statutory protection from disclosure exists, the agency should identify those documents and provide a brief written explanation including citation to the statute authorizing nondisclosure.
03-ORD-117, citing KRS 61.880(1) and 03-ORD-012.
On appeal of this open records decision, pursuant to KRS 61.880(5)(a), the Franklin Circuit Court affirmed 03-ORD-117, opining:
In light of KRS 61.871 and KRS 61.884, the Court reads the word "describing" in KRS 61.872(2) to allow the custodian to ask applicants to identify the records they wish to examine. As long as the custodian can identify what documents the applicants wish to see, the statute is satisfied. Here, the Defendant desired to examine the documents in his inmate file. That description adequately described what documents he desired to inspect because the Plaintiffs could tell exactly what documents he wanted. The Plaintiffs are not authorized to require a more specific description under KRS 61.872(2). 2
Commonwealth of Kentucky, Justice Cabinet, Department of Corrections, and Western Kentucky Correctional Complex v. Bobby Chestnut, 03-CI-00706 (Franklin Circuit Court, June 25, 2004). The Department of Corrections and Western Kentucky Correctional Complex have since appealed the Franklin Circuit Court's opinion to the Kentucky Court of Appeals. Commonwealth of Kentucky, Justice Cabinet, Department of Corrections, and Western Kentucky Correctional Complex v. Bobby Chestnut, 2004-CA-001497 (filed June 26, 2004). That appeal is pending.
Unless and until the Court of Appeals reverses the opinion of the Franklin Circuit Court affirming 03-ORD-117, we will continue to ascribe to the view that an inmate request for his "entire" or "complete" inmate file is sufficiently specific and that the inmate cannot be required to provide a more specific description. We therefore find that EKCC violated the Open Records Act in denying Mr. Southard's original request because the requested inmate file contained exempt documents.
Further, we find that EKCC erred in failing to identify the exempt documents contained in the file and cite the statutory exception authorizing nondisclosure of those records. As EKCC is no doubt aware, KRS 61.880(1) provides:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for records.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Because EKCC failed to identify the exempt records in Mr. Southard's inmate file, and include a statement of the specific exception authorizing the withholding of those records in its original denial of his request, that denial was deficient and violated KRS 61.880(1).
Upon receipt of notification of Mr. Southard's appeal, EKCC elected to permit Mr. Southard to review his inmate file minus the records deemed exempt. In the letter notifying Mr. Southard of the date and time for inspection, EKCC articulated the statutory bases for its partial denial of his request. Having reviewed the arguments EKCC belatedly advanced, we affirm its partial denial of his request for: (1) his presentence investigation report on the basis of KRS 439.510, as construed in
Commonwealth v. Bush, Ky., 740 S.W.2d 943 (1987) and 00-ORD-221 (enclosed) ; (2) his pre-parole progress report and parole guidelines assessment forms on the basis of KRS 61.878(1)(j) 3 as construed in 99-ORD-114 and 01-ORD-13 (enclosed) ; (3) and his mental health status form, conflict notification forms, and security alert notifications on the basis of KRS 197.025(1) and KRS 61.878(1)(l), as construed in 01-ORD-224 (enclosed) . Although we cannot affirm EKCC's original disposition of Mr. Southard's request, we find no error in its ultimate decision to withhold the cited records.
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.
Tommy Southard, # 159170Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Tami WilliamsRecords Custodian Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 40 KAR 1:030 Section 6 states that "[i]f the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." This administrative regulation contemplates disclosure of all requested records and not just those deemed nonexempt by the agency.
2 The court recognized that although it had not done so in this case, WKCC might succeed in proving an undue burden, pursuant to KRS 61.872(6), resulting from the Attorney General's decision.
3 Notwithstanding the addition of two new exceptions to the Open Records Act, the Legislative Research Commission's Statute Reviser advises this office that the exceptions will retain their current citation form and the new exceptions will be codified as KRS 61.878(l)(m) and (n).