Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center properly relied on KRS 197.025(5) in denying Curtis Ison's January 26, 2007, request for a copy of the tape of an adjustment committee hearing, of which he was the subject, and copies of "tapes for hearings on 10/30/06 and 11/17/06 which were not identified on Part II-Hearing/Appeal." 1 In denying Mr. Ison's request, NTC advised him that "KRS 197.025(5) . . . states in part: 'all records containing information expunged pursuant to law shall not be open to the public.'" Shortly thereafter, Mr. Ison initiated this appeal, asserting that KRS 197.025(5) is inapplicable insofar as "the audiotape is of an Administrative Hearing which was voided by the warden. The record of the proceeding has not been expunged pursuant to any law." We agree with Mr. Ison and find that NTC's reliance on KRS 197.025(5) was misplaced.
In supplemental correspondence directed to this office following commencement of Mr. Ison's appeal, NTC elaborated on its position. It was NTC's position that:
An order by the Warden that an incident is "void" is permitted pursuant to 501 KAR 6:020, Corrections Policy & Procedure (CPP) 15.6, II.F.5.d. 2 An order that an incident is void is in fact, an order of expungement.
Because the disciplinary infraction of which Mr. Ison was found guilty by the adjustment committee was subsequently voided by the warden, NTC explained, "the disciplinary report and write-up were expunged on January 23, 2007," pursuant to the warden's order. Continuing, NTC observed:
No record of the incident or hearing will be maintained in the inmate's institutional record or KY DOC Central Office records as a result of the expungement. The expungement order is maintained by the NTC only as proof that the warden did, in fact expunge the incident in its entirety.
. . .
Pursuant to KRS 197.025(5), an expunged disciplinary report, including the audiotape recording of the hearing from which such disciplinary report was heard, is not open to the public.
On this basis, NTC argued that the denial of Mr. Ison's request "did not violate the Open Records Act . . . ."
Unable to resolve this dispute on the facts and law presented, this office requested additional documentation from NTC for substantiation, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, by letter dated March 9, 2007. Specifically, we asked that NTC identify the law or authority upon which it relied for its position that the warden may expunge records such as those in dispute and that a determination that an incident is void is equivalent to an order of expungement. NTC responded:
501 KAR 6:020, Corrections Policy & Procedure (CPP) 15.6 was drafted to comply with American Correctional Association (ACA) Standard 4-4236, which provides that an accredited correctional facility's "(w)ritten policy, procedure, and practice provide that if an inmate is found not guilty of an alleged rule violation, the disciplinary report is removed from all of the inmate's files." (Emphasis added.) Thus, a warden's determination that an incident is void is an order that the disciplinary report be "removed," which is a synonym of "expunged. "
. . .
A warden's authority to expunge a disciplinary report and all reference to the alleged wrongdoing, including the adjustment hearing tape, is derived from the duties of the warden expressed in KRS 196.180, which states that "(t)he warden shall have the general management of the institution, and the inmates thereof, subject to the administrative regulations of the Department of Corrections, and he shall devote his entire time to the duties of his office." Within the scope of his authority to manage the correctional institution and its inmates, the warden of the correctional facility has discretionary authority to expunge the disciplinary report from the inmate's record as the final arbiter of administrative agency action prior to judicial review.
Citing four cases in support, NTC maintained that "Kentucky courts recognize an institutional warden possesses discretionary authority to expunge disciplinary reports and related records under CPP 15.6." 3
On April 3, 2007, NTC submitted an addendum to its supplemental response, directing our attention to 501 KAR 6:020, Corrections Policy and Procedure 15.6, II.D.4, which states:
If the Adjustment Committee or Adjustment Officer find the inmate did not commit the violation or if an appeal results in the reversal, the disciplinary report shall be removed from the inmate's file.
Just as it had asserted that the term "void" is a synonym for the term "expunged" in its earlier response, NTC now asserted that "removal is synonymous with expungement. " Because KRS 197.025(5) may properly be invoked only as to "records containing information expunged pursuant to law," and NTC cites no law authorizing expungement, we find these arguments unpersuasive.
We begin by parsing the language of KRS 197.025(5). As noted, that statute provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, all records containing information expunged pursuant to law shall not be open to the public.
We examine first the phrase "pursuant to law." NTC relies upon Corrections Policy and Procedure 15.6, which is incorporated by reference into 501 KAR 6:020 as "necessary and suitable for the proper administration of the department (of Corrections) or any of its divisions . . . [and] to comply with the accreditation standards of the American Corrections Association." We must, therefore, determine if the cited regulation has the status of law. In Harrison's Sanitarium, Inc. v. Department of Health, Ky., 417 S.W.2d 137, 138 (1967), the Kentucky Supreme Court declared that "[a]dministrative regulations properly adopted and filed have the full effect of law and are required to be enforced." To be valid, such regulations:
must be within the authority conferred upon the administrative agency. The power to make regulations is not the power to legislate in the true sense, and under the guise of regulation legislation may not be enacted. The statute which is being administered may not be altered or added to by the exercise of a power to make regulations thereunder. A rule which is broader than the statute empowering the making of rules cannot be sustained.
Henry v. Parrish, 307 Ky. 559, 211 S.W.2d 418, 422 (1948). Simply stated, regulations are valid as long as they are consistent with the statutes authorizing them.
If, on the other hand, a regulation "exceeds statutory authority or [is], in some way, . . . repugnant to the statutory scheme," it is invalid. Revenue Cabinet v. Joy Technologies, Inc., Ky. App., 838 S.W.2d 406, 409 (1992); Robertson v. Schein, 305 Ky. 528, 204 S.W.2d 954 (1947); Curtis v. Belden Electronic Wire & Cable, Ky. App., 760 S.W.2d 97 (1988). Fundamental to this rule of law is the proposition that "encroachment upon the legislative power would be in direct violation of Sections 27 and 28 of our Constitution." Id. Moreover, KRS 13A.120(2)(i) provides that "an administrative body shall not promulgate administrative regulations . . . which modify or vitiate a statute or its intent." Thus, "an administrative agency cannot, by its rules and regulations, amend, alter, enlarge, or limit the terms of a legislative enactment." Curtis at 99. 501 KAR 6:020, incorporating CPP 15.6 by reference, does not appear to conflict with the statutes authorizing it, and we accord it the status of law. Compare 97-ORD-136 (holding that KRS 16.040(4), directing disclosure of background investigations by the Kentucky State Police, and 502 KAR 45:065 Section 5, mandating confidentiality as to such investigations, are in conflict and the regulation is therefore invalid) ; see also, 06-ORD-157. Our analysis does not, however, end here.
KRS 197.025(5) may only be invoked when the records sought "contain[] information expunged pursuant to law." (Emphasis added.) Neither CPP 15.6, II.F.5.d. nor 15.6, II.D.4. authorize the expungement of a record. NTC, which is statutorily assigned the burden of proof in sustaining its action, 4 has cited no specific legal authority supporting its position that the terms "void" and "removal" are synonymous with the term "expungement, " and we respectfully decline its invitation to treat these terms interchangeably. Expungement is an extraordinary legal device by which we are permitted "to indulge the fiction" that a record does not exist; in essence, to "unring the bell." Margaret Colgate Love, The Debt That Can Never Be Repaid, 21 Fall Crim. Just. 16 (2006). In OAG 76-598, this office expressed the view that "no officer or judge has the authority to expunge or order the expungement of any court record or police record without an express statute granting the authority. " OAG 76-798, p. 1 (emphasis added). Several years later, we were asked to issue an opinion on "the general and specific authority of the district and circuit courts to order expungement of records of arrest. " At page 2 of OAG 82-588, the Attorney General observed:
We believe that KRS 17.142 . . . settles the question as to the expungement of police records by order of a court and mandates that the records are not to be expunged but "segregated." Prior to the enactment of this statute there was not in effect in Kentucky a statute giving general power to courts to expunge police records, and KRS 17.142 does not give such power. The statute only authorizes the segregating of arrest records, et cetera, not court records. (See OAG 80-460.) Some federal courts have held that courts have the inherent power to order the expungement of records of arrests but even if that were formerly the case in Kentucky, which we doubt, the legislature has now specifically fixed the public policy against expungement by providing for the segregating of police records in certain instances described by the statute.
(Emphasis added.) This "public policy against expungement" was reaffirmed by the Legislature in its most recent session when HB 16 and SB 34 failed to achieve passage. These bills would have permitted persons convicted of one Class D felony, or a series of Class D felonies arising out of a single event, to petition to have their records expunged. Both were, as noted, unsuccessful. Given this public policy against expungement, we do not believe that the power to expunge should be casually inferred.
A cursory review of Kentucky Revised Statutes confirms the presence of a number of provisions containing an express grant of authority to expunge. First and foremost, KRS 431.076 expressly authorizes the district or circuit court to expunge all records arising out of an arrest or charge upon motion of a person who has been found not guilty of the offense, or against whom charges have been dismissed with prejudice, and not in exchange for a guilty plea to another offense. KRS 431.078 expressly authorizes a convicting court to expunge misdemeanor or violation records upon petition of a person who has been convicted of a misdemeanor or violation, or a series of misdemeanors or violations, arising from a single incident. KRS 610.330 expressly authorizes a court to expunge juvenile court records upon petition of "any child who has been adjudicated as coming within the purview of KRS Chapters 630, 635 (with regard to status offenses, misdemeanors, or violations only), or 645 but not KRS Chapters 620 or 640 . . . ." KRS 510.300 expressly authorizes a court to expunge all law enforcement or other public agency records relating to an offense under Chapter 510 (sexual offenses) if the individual to whom the records relate was accused of the offense by his spouse and the charges were either dismissed with prejudice or a verdict of not guilty was entered. Additionally, the Kentucky Revised Statutes vest numerous regulatory bodies with the power to expunge records in certain limited contexts. See, e.g., KRS 161.795 (expungement of records that school employee acted improperly in relation to statewide assessment program); KRS 311.275 (expungement of records relating to physician, osteopath, podiatrist, and related medical practitioner for minor violations); KRS 313.600 (expungement of records relating to dentists and dental specialists for minor violations); KRS 315.121 (expungement of records relating to pharmacists for minor violations); and KRS 320.310 (expungement of records relating to optometrists for minor violations).
CPP 15.6 does not contain an express grant of authority to expunge at either II.F.5.d. or at II.D.4. We reject NTC's position that such authority is synonymous with the authority to "void" an incident or "remove" a record. Consistent with the rule of statutory construction, codified at KRS 446.080(4), that "[a]ll words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning," we conclude that the terms "void" and "removal" must be construed according to their common usage, and that the term "expungement" must be construed according to its peculiar and appropriate meaning in the law. The terms are not synonymous or interchangeable, and the omission of the latter term in the CPP's upon which NTC relies imports a legislative determination that the warden's authority is restricted to voiding an action, and that the adjustment committee's authority is restricted to removing a record. In sum, KRS 197.025(5) authorizes nondisclosure of "records containing information expunged pursuant to law, " and CPP 15.6 is not a law that authorizes expungement. (Emphasis added.) NTC's reliance on KRS 197.025(5) as the basis for denying Mr. Ison's request was therefore misplaced.
Having resolved the question before us on this point, we will not lengthen this decision with an analysis of the final clause of KRS 197.025(5), "shall not be open to the public," except to note that Mr. Ison almost certainly enjoys a broader right of access to the requested tapes insofar as he is the subject of the tapes and not merely a member of the public. Accord, KRS 61.884 and KRS 197.025(2). Unless NTC can articulate a separate legal basis for denying him access to those tapes, we believe that its continuing nondisclosure of the tapes constitutes a violation of the Open Records Act.
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.
Curtis Ison, # 137925
Jennifer MaryeOffender Information SpecialistNorthpoint Training CenterP.O. Box 479Burgin, KY 40310
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 In the absence of evidence to the contrary, we assume that all of the requested tapes relate to the same alleged infraction.
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2 CPP 15.6, II.F.5.d states:
The warden or his designee may, during his review:
. . .
d. void the disciplinary report in its entirety[.]
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3 Having reviewed those cases, one of which has been overruled, we find no reference to CPP 15.6 or the warden's authority to expunge disciplinary reports under that provision. Lang v. Sapp, Ky. App. 71 S.W.3d 133 (2002) overruling Blair v. Hendricks, Ky. App., 30 S.W.3d 802 (2000). Assuming that the authority to expunge can be judicially conferred on a public officer, these cases do not confer, expressly or impliedly, such authority on the warden of a correctional facility.
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4 KRS 61.880(2)(c).
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