Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Lexington-Fayette Urban County Government (LFUCG), Division of Community Corrections, (Division) relative to Sean Miller's request for certain Division records violated the Open Records Act.
By letter dated April 17, 2007, Mr. Miller submitted a request to the Division, asking for:
1. One copy of the incident report(s) regarding the altercation between I and another inmate (his name unknown to me) which resulted in an assault on me while I was restrained on 04-18-07 @ 12:30 p.m. in unit F.
2. One copy of the F.C.D.C. protocol/ procedures for officers who are responding to fight (s) in a unit, including the dorm officers as well as roving officers.
In his letter of appeal, dated May 4, 2007, Mr. Miller stated that had received no response to his request.
After receipt of notification of the appeal, Keith Horn, Attorney, Department of Law, LFUCG, provided this office with a response to the issues raised in the appeal. In his response, he advised, in part:
The Custodian of Records for the Division of Community Corrections was not aware that Mr. Miller had made an open records request until he received your letter notifying him of the appeal. Mr. Miller sent his letter to a commander, who did not recognize it as an open records request and, so, did not forward it to the Records Custodian. To prevent this from occurring in the future, Community Corrections has sent a memo (attached as Exhibit A) to Commanders directing that such correspondence be reviewed and forwarded to the records custodian.
When the records custodian became aware of the request via your letter, he tracked down Mr. Miller's letter. He has now responded to Mr. Miller's request. The Records Custodian's response is attached (as exhibit B).
In the Division's response to Mr. Miller's request, Todd Eads, Assistant Director -- Administration, Custodian of Records, advised, in relevant part:
All non-exempt documents responsive to No. 1 of your request above are now available for inspection and copying. Pursuant to the privacy exemption in KRS 61.878(1)(a), the social security numbers, dates of birth, sex and race of other inmates have been redacted from the documents that are now available.
Your request is denied as to the documents in No. 2 above, as it seeks documentation that relates to the security and control of inmates, their disclosures could pose a threat to the security of inmates, correctional staff and the institution, that the documents do reference you the requestor, pursuant to KRS 197.025(1), 197.025(6), and 197.025(2). . . .
Mr. Eads further advised Mr. Miller that since he lived outside Fayette County, he was entitled to receive his documents by mail upon prepayment of the copying and mailing costs of $ 1.44 ($ 0.10 per copy times 8 pages, plus postage).
To begin, we find that regardless of whether Mr. Miller's request was specifically identified as an open records request, the Division was obligated to treat it as such. The duty to properly respond does not place an undue burden upon public servants," the Court of Appeals has observed, "[t]he agency may deny the request, or may ask for a more specific request, or may even tell the person asking for the documents that another custodian has the records, but the agency is required to promptly respond to the request in some fashion." George William Sykes v. James Kemper, Ky., App., 2000-CA-000714-MR (3/30/01), petition for rehearing denied, July 20, 2001 (unpublished opinion holding that the failure to issue a proper response to an open records request was not excused by the requester's failure to identify the request as a request made under KRS 61.870 et seq.). 1 The Division has acknowledged that its response was untimely and we will not belabor the point. The agency has taken steps to ensure timely responses in the future by sending a memo to all Commanders directing that if they receive any form of correspondence requesting documents, they should timely process it in the appropriate manner and that only the Custodian of Records is permitted to release any documentation from the facility.
We address next the response to the request for the incident reports. This record was provided to Mr. Miller, with personal information of other inmates redacted, such as social security numbers, dates of birth, sex and race, pursuant to KRS 61.878(1)(a) . That statute excludes from public inspection:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
The Kentucky Court of Appeals in Zink v. Commonwealth, Ky.App., 902 S.W.2d 825 (1994) recognized that the purpose for which the Open Records Act was enacted would not be furthered "by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct." Zink at 829. The court specifically identified home addresses, telephone numbers, social security numbers, and income as those items of information in which the public has no legitimate interest. We believe that the reasoning in Zink can be extended to the present appeal. Under Zink, the Division may properly redact the personal information of other inmates from the incident reports, as this information would reveal negligible information about the agency's conduct. KRS 61.878(4).
Moreover, the Division could properly require prepayment of the copying fee prior to mailing the requested documents to Mr. Miller. KRS 61.872(3); 95-ORD-105.
We further find that the Division properly denied Mr. Miller access to a copy of the protocol/ procedures for officers responding to a fight, under authority of KRS 197.025(2). 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.
The language of KRS 197.025(2) requires that the records requested by the inmate "contain a specific reference to the [requesting inmate] ." (Emphasis added.) A copy of records containing protocol/ procedures for officers responding to a fight would not specifically reference Mr. Miller. Accordingly, we find that the Division properly denied the request for such records under KRS 197.025(2) , because they would not contain a specific reference to him. 03-ORD-305. Because the foregoing is dispositive of this appeal, we need not address other bases relied upon by the Division in its denial of this 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 any subsequent proceeding.
Footnotes
Footnotes
1 Although George William Sykes v. James Kemper is an unpublished opinion that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion relative to the duties of public agencies upon receipt of an open records request not clearly identified as such.