Request By:
Joshua Gardner, # 215523
David Osborne
Claud Porter
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Daviess County Detention Center violated the Kentucky Open Records Act in denying the request of Joshua Gardner "to review the commissary records." In denying Mr. Gardner's request, an unidentified deputy incorrectly advised him that an "Open records request can only be made by the public, not an inmate incarcerated at this facility." 1 By letter dated March 20, 2008, Mr. Gardner initiated this appeal from the denial of his request. Upon receiving notification of Mr. Gardner's appeal from this office, Daviess County Jailer David Osborne belatedly satisfied the agency's burden of proof under KRS 61.880(2)(c) by invoking KRS 197.025(2) and correctly asserting that Mr. Gardner's request "is not for a record which contains a specific reference to that inmate." By letter dated March 28, 2008, Daviess County Attorney Claud Porter, in relevant part, reiterated that KRS 197.025(2) applies here. Although the DCDC improperly relied upon KRS 61.872(6), insofar as it failed to adduce clear and convincing evidence that honoring the request would impose an unreasonable burden on the agency, and misinterpreted KRS 197.025(1) and KRS 197.025(3), the DCDC is authorized to deny access on the basis of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l); accordingly, further elaboration is unwarranted.
In our view, 04-ORD-071 and 03-ORD-074 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. As consistently recognized by the Attorney General, KRS 197.025(2) expressly authorizes the DOC and correctional facilities under its jurisdiction 2 to deny any request by any inmate unless the record(s) contains a specific reference to that inmate. Because the records at issue do not contain a specific reference to Mr. Gardner, as required by KRS 197.025(2), Mr. Gardner is not entitled to inspect or to receive a copy of any such records, notwithstanding his underlying concerns. Regardless of the hardship Mr. Gardner may believe that application of KRS 197.025(2) imposes upon him, Mr. Gardner is expressly precluded from gaining access to records which do not contain a specific reference to him by the mandatory language of this provision; accordingly, the DCDC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l) , in denying his 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 proceedings.
Footnotes
Footnotes
1 To the extent the DCDC was referring to this request only, as opposed to all requests, the response was nevertheless deficient insofar as the DCDC failed to cite the applicable statutory exception and briefly explain how it applies in accordance with KRS 61.880(1).
2 In 03-ORD-074, this office concluded that "an interpretation of KRS 197.025(2) that does not include jails is legally unsupportable in light of the underlying purpose of KRS 197.025 as a whole." Id., p. 4.