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Opinion

Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General

Open Records Decision

The question presented in this appeal is whether the Kentucky State Reformatory (KSR) violated the Kentucky Open Records act in its disposition of the request of inmate Tommy Southard for copies of certain Corrections Policies and Procedures. We conclude that the actions of the KSR were in accordance with the Act.

Mr. Southard made a written request dated November 20, 2008, for "[a]ny and all Corrections Policies & Procedures (C.P.P.'s) that relate to the rules and policies for issuing and investigation of Write-ups/Disciplinary Report Forms and for Court Call/Adjustment Committee hearings and rules/policies dealing with the hearings and appeals of the decision." The KSR's reply came in the form of a memorandum from Marc Abelove, Offender Information Specialist, dated December 1, 2008, which read: "Your request to view and inspect certain CPP's based on CPP 6.1 is being denied. They are located in the legal law library, where you may review them. I wish I had a more favorable response."

In his appeal, Mr. Southard states in part:

They are located in the legal library, but I cannot review them there since they have me locked in the C.P.T.U. unit [i.e., Corrections Psychiatric Treatment Unit C-Wing, a segregated area], I am not allowed to go [to] the yard or the legal law library, nor will the legal-Aide bring a copy or assist me in any way, they just ignore my request. I will not have access to the yard for at least several months.

(Emphasis in original.) Mr. Southard also argues that the KSR is denying him his "due process rights."

The KSR replies, per Staff Attorney Leigh K. Meredith, Justice and Public Safety Cabinet, that under KRS 197.025(2) Mr. Southard is not entitled to view the CPP's because they do not mention him by name. Furthermore, the KSR contends, an open records appeal is not the proper forum for litigating constitutional rights. Finally, the KSR maintains that it is not required to provide Mr. Southard with copies of records merely because he is unable to view them on site due to his confinement. In light of this Office's past decisions, we agree on all points.

KRS 197.025(2) provides as follows:

KRS 61.870 to 61.884 to the contrary notwithstanding, the [D]epartment [of Corrections] 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.

We have consistently interpreted this provision as supporting the Department's position that only documents mentioning the inmate by name need be provided. 05-ORD-130; 03-ORD-073; 99-ORD-157; 98-ORD-150. Since the general Corrections Policies and Procedures do not and would not mention Mr. Southard specifically, KRS 197.025(2) is dispositive of this appeal.

We also note, however, our prior statement in 08-ORD-142 that this Office "cannot address, in the context of an open records appeal, a complaint that one's due process rights have been violated." Issues unrelated to the Open Records Act are beyond the Attorney General's review powers under KRS 61.880. 99-ORD-121.

Lastly, with regard to the limitations imposed by Mr. Southard's conditions of confinement, we reaffirm our statement in 95-ORD-105 that "if [an inmate] is prohibited by freely moving about in the facility, and therefore cannot conduct an on-site inspection in the records office, the facility is under no obligation to bring the original records to his cell for inspection. " See also 03-ORD-152 ("where, because of incarceration, the requester cannot inspect a record..., the agency may deny a copy thereof"). The fact that Mr. Southard has no access to the law library does not place an obligation on the KSR to bring the documents to him. For these reasons, the Kentucky State Reformatory did not violate 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 proceedings.

LLM Summary
The decision concludes that the Kentucky State Reformatory (KSR) did not violate the Kentucky Open Records Act when it denied inmate Tommy Southard's request for certain Corrections Policies and Procedures. The denial was based on the provisions of KRS 197.025(2), which stipulates that only records specifically mentioning the inmate by name need to be provided. The decision also addresses that constitutional claims and issues unrelated to the Open Records Act are beyond the scope of the Attorney General's review in open records appeals. Furthermore, it reaffirms that the facility is not obligated to provide records to an inmate who cannot access them due to confinement conditions.
Disclaimer:
The Sunshine Law Library is not exhaustive and may contain errors from source documents or the import process. Nothing on this website should be taken as legal advice. It is always best to consult with primary sources and appropriate counsel before taking any action.
Requested By:
Tommy Southard #159170
Agency:
Kentucky State Reformatory
Type:
Open Records Decision
Lexis Citation:
2009 Ky. AG LEXIS 77
Forward Citations:
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