Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in denying James Nick Harrison's request(s) for the unidentified policy on which Warden John Motley relied in rejecting his outgoing mail because inmates "are not authorized to have or receive social security numbers while incarcerated. " Although EKCC responded in a timely manner on each occasion, the agency failed to address that portion of Mr. Harrison's initial request, and then mistakenly advised him to "refer to CPP 17.1" in response to his second request. 1 EKCC ultimately advised Mr. Harrison that "CPP's or IPP's do not mention access to social security numbers. However, no inmate is authorized to have any social security numbers in his possession while incarcerated. " Upon receiving notification of Mr. Harrison's appeal, which he filed prior to expiration of the five business days in which EKCC was required to respond to his final request under KRS 197.025(7), 2 Assistant General Counsel Amy V. Barker, Department of Corrections, responded on behalf of EKCC, reiterating that "non-secured policies of EKCC are available for inmates to inspect in the library at EKCC." Because such policies do not contain a specific reference to Mr. Harrison, EKCC is correct in belatedly asserting that "he is not entitled to other arrangements for inspection being made for him pursuant to KRS 197.025(2)." 3
In our view, 00-ORD-2 (specifically upholding a denial of a request for a specific CPP) and 04-ORD-076 are controlling as to application of KRS 197.025(2); 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 correctional facilities under the jurisdiction of the Department of Corrections to deny a request by an 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. Harrison (to the extent any such policy exists), as required by the language of KRS 197.025(2), he is not entitled to inspect or to receive copies of those records, notwithstanding his underlying concerns. Regardless of the hardship Mr. Harrison believes that application of KRS 197.025(2) imposes on the facts presented, he 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, EKCC properly relied upon KRS 197.025(2) , incorporated into the Open Records Act by operation of KRS 61.878(1)(l), albeit belatedly, in denying his request. 99-ORD-161, p. 2. To hold otherwise would "defeat the purposes for which KRS 197.025(2) was enacted." 00-ORD-2, p. 1.
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.
Footnotes
Footnotes
1 In addition, EKCC advised Mr. Harrison that such policies "are available in the institution library."
2 Mr. Harrison's final request is dated August 4, 2008, and he initiated this appeal by letter dated August 7, 2008.
3 In addition, Ms. Barker notes that Mr. Harrison "did not follow the requirements of CPP 6.1 to obtain a Request to Inspect Public Record form from his caseworker and send the request to the coordinator through institutional mail. " With regard to application of CPP 6.1, the analysis contained in 08-ORD-157 is equally applicable on these facts; a copy of that decision is attached hereto and incorporated by reference. Ms. Barker has reminded EKCC "to state all of these reasons" in denying future requests of this nature; accordingly, this office will not belabor the point. However, this office must respectfully disagree that any issues concerning Mr. Harrison's final request are moot per 40 KAR 1:030, Section 6 merely because a response has now been provided; this office is only permitted to reach that conclusion if the agency provides the requester with access to all of the records being sought after his appeal has been filed. In this case, the denial is affirmed on the basis of KRS 197.025(2).