Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Marion Adjustment Center properly relied on Kentucky Department of Corrections Policy and Procedures 6.1, which corresponds to KRS 197.025(2), in denying inmate James Lee Wilson's September 17, 2008, request for "a list of legal aides certified by the DPA on the computer database from 1990 to present time [, including] names of legal aides and where they took training." We find that 03-ORD-073, a copy of which is attached hereto and incorporated by reference, is controlling.
In 03-ORD-073 this office determined that a correctional facility properly denied an inmate request for a record that did not contain a specific reference to him on the basis of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(1). 1 KRS 197.025(2) corresponds to CPP 6.1 which restricts inmate access to public records in the possession of the principal office or institution, to "record[s] that pertain [] to him." In a recent opinion issued by the Kentucky Supreme Court, the Court rejected the Department of Corrections' reliance on a CPP that contained a specificity requirement for inmate open records requests that did not correspond to the provisions of the Open Records Act or any other provision of law. At page 662 of Department of Corrections v. Chestnut, 250 S.W.3d 655 (Ky. 2008), the Court held that the CPP, which is incorporated by reference at 501 KAR 6:020, "provides no relief to the DOC . . . because it purports to add a requirement not found in the statutes," noting that DOC "cannot by its rules or regulations, amend, alter, enlarge or limit the terms of legislative enactment. " Chestnut at 662, citing Camera Center, Inc. v. Revenue Cabinet, 34 S.W.3d 39, 41 (Ky. 2000) and Brown v. Jefferson County Police Merit Board, 715 S.W.2d 23 (Ky. 1988).
In the appeal before us, MAC relies on a section of CPP 6.1 that does not add a requirement not found in the statutes. Instead, it corresponds to KRS 197.025(2) and does not purport to amend, alter, enlarge, or limit the terms of a legislative enactment. 2 To the extent that the section of CPP 6.1 upon which MAC relies corresponds to a statutory enactment, it provides a legitimate basis for denying Mr. Wilson's request. We therefore affirm MAC's denial of that request, but urge MAC, along with all other jails and state and private facilities operating under CPP 6.1 to bear in mind the Court's holding in Chestnut in responding to future open records requests.
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.
Distributed to:
James Wilson, #173715-281Daniel AkersCole CarterLeigh K. Meredith
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]
2 We note that CPP 6.1 does not mirror KRS 197.025(2), insofar as it refers to inmate requests for records "that pertain to him," as opposed to inmate requests for records that "contain a specific reference to" the inmate.