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 Northpoint Training Center ("NTC") violated the Kentucky Open Records act in its disposition of the request of inmate Lorenzo C. Lee for copies of certain NTC policies and Corrections Policies and Procedures ("CPP"). We conclude that the actions of the NTC were in accordance with the Act.
Mr. Lee made a written request dated March 16, 2009, as follows:
I am currently on security check. I am requesting any and all N.T.C and CPP policies as it pertains to inmates actively performing a Bi-hourly security check, and the criteria for placing inmates on security check. I also am requesting free copies, because I am indigent. Pursuant to Freedom of Information Act.
The NTC replied in the form of a letter from Donna Lamb, Office Support assistant, dated March 18, 2009, denying the request for the following reasons:
KRS 197.025(2) states that the Department of Corrections is not required to comply with a request for any record from any inmate confined in any facility unless the request is for a record that contains a specific reference to that individual. KRS 197.025(2) applies to your request as an enactment of the General Assembly (See KRS 61.878(1)(l)). You are asking for policies which do not specifically reference you. Since the public records you request do not contain a specific reference to you, the record is exempt from disclosure to you under KRS 61.878(1)(l) and KRS 197.025(2).
The Open Records Act does not require an agency to perform research or compile information to conform to a request. Any policy that may be responsive to your request that is a secured policy is exempt from disclosure pursuant to KRS 61.878(1)(l) and KRS 197.025(6). You may review nonsecured policies in the law library.
KRS 61.874(1) states in part, "When copies are requested, the custodian may require a written request and advance payment of the prescribed fee."
The Freedom of Information Act does not apply to state records, only to federal records.
The present appeal was received by this office on March 23, 2009.
In his appeal, Mr. Lee contends that the policies he requested are illegal and that the NTC's invocation of KRS 197.025(2)
violates the 5th and 14th Amendments of the Constitution of unfair and deceptive treatment of a[n] accused by the government ? Due Process and the Equal Protection Clauses is intended to guarantee procedural standards adequate and appropriate to protect at all times people charged with or suspected of crimes by those holding position of power and authority.
In response to the NTC's statement that a public agency is not required to do research, Mr. Lee specifies the policies he wishes to inspect as "N.T.C 09-30-01 along with 09-30-01 attachment 1." With regard to copying fees, he invokes Corrections Policies and Procedures regarding indigent inmates; and he further argues that the federal Freedom of Information Act (FOIA) should apply to the NTC and the Department of Corrections because they receive federal funds.
The NTC replies, per Staff Attorney Leigh K. Meredith, Justice and Public Safety Cabinet, that under KRS 197.025(2) Mr. Lee is not entitled to view the NTC policies or CPP's because they do not mention him by name, and that pursuant to KRS 197.025(6) the CPP's addressing "security and control of inmates and penitentiaries" are confidential. Additionally, the NTC contends, an open records appeal is not the proper forum for litigating constitutional rights. Finally, the NTC reiterates that FOIA does not apply to state records. 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.
The Attorney General has 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 NTC policies and the Corrections Policies and Procedures do not mention Mr. Lee specifically, KRS 197.025(2) is dispositive of this appeal. 1 Furthermore, to the extent the CPP's may fall within the scope of KRS 197.025(6), they are exempt from inspection as records made confidential by the General Assembly, pursuant to KRS 61.878(1)(l). 05-ORD-055.
We also note 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. The same is true of equal protection or any other constitutional issue.
Lastly, with regard to Mr. Lee's invocation of FOIA, we reaffirm our statement in OAG 91-56 that despite a state agency's receipt of federal funds "FOIA has no force as to state records, only the records of federal agencies." See also 96-ORD-244; OAG 83-256. For all of these reasons, the Northpoint Training Center's actions were in compliance with the law.
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.
Lorenzo C. Lee # 187158Leigh K. Meredith, Esq.Donna Lamb, NTC
Footnotes
Footnotes
1 We therefore decline to address the moot issue of fees for copies to which Mr. Lee is not entitled.