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 Roederer Correctional Complex ("RCC") violated the Kentucky Open Records Act in its disposition of two requests from Timothy John Lewis, currently an inmate at the Eastern Kentucky Correctional Complex and formerly at RCC, for copies of various records. We conclude that RCC has not violated the Act.
Mr. Lewis states that he made two written requests on May 3, 2009, the first of which was for the following:
1 - 1 Copy of CorrectCare Insurance Policy and Coverage Plan.
2 - 1 copy of all medical Records for MontH [ sic ] of April, 2009, including Referrals and Denials, for Coverage of treatments, Appts, and Results of U.K. P.M. & R. Nerve test. RL
3 - 1 copy of KCHC Policy, For Standard of Care, For Hernia, and Herniated Disc's.
The second request was for:
1 - 1 # Copy of all Transfers, including who Approved Transfer, Since 2-29-2008.
2 - # 1 copy of CorrectCare Insurance Policy and Coverage Plan for Prisoners, I've never Rec[ei]ved one.
3 - # 1 copy of C.P.P. for Transfers including "Turn Around" and Midical Sections.
Having received no response, Mr. Lewis appealed to this office on May 10, 2009.
RCC's reply was submitted on May 26, 2009, by Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet. She states that the facility has no record of having received either of Mr. Lewis' requests, but that in any event he must pay in advance for copies and postage or alternatively complete a money authorization form pursuant to Corrections policy. She also contends that any forms containing transfer recommendations that were not implemented would be exempt as preliminary documents under KRS 61.878(1)(i) and (j). Furthermore, she states that if there is "any information concerning conflicts," it could be redacted pursuant to KRS 197.025(1) and 61.878(1)(l). With regard to Mr. Lewis' request to know who approved transfers, Ms. Barker argues that if that information does not appear in a record, the Act does not require RCC to provide it.
Any Corrections Policies and Procedures ("CPP") or KCHC protocols requested by Mr. Lewis need not be provided to him under KRS 197.025(2), Ms. Barker asserts, since they do not contain a specific reference to him. Lastly, as to the "Insurance Policy and Coverage Plan" for inmates, she states that no such document exists.
To begin, we have no reason to doubt RCC's claim that it had not previously received Mr. Lewis' requests, and we address only the merits of its subsequent response to those requests as contained in its response to this appeal. We begin with RCC's position that Mr. Lewis must pay in advance. 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 courts and this office have recognized the propriety of a Department of Corrections policy requiring advance payment of copying fees. 08-ORD-044. In
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that an inmate is entitled to receive a copy of a record only after "complying with the reasonable charge of reproduction." Accordingly, the Attorney General subsequently determined that it is "entirely proper for [a correctional] facility to require prepayment, and to enforce its standard policy relative to assessment of charges to inmate accounts ...." 95-ORD-105. While acknowledging that "this prepayment policy might work a hardship on inmates, " this office has nevertheless upheld the policy as "entirely consistent with the Open Records Act and the rule announced in Friend v. Rees. " 97-ORD-131 (quoting 95-ORD-90, p. 2). In accordance with these precedents, it is proper for RCC to require advance payment from Mr. Lewis.
Turning to the issue of redacting the transfer recommendation documents, we note that the Attorney General has recognized in prior decisions that information concerning conflicts between inmates may be redacted pursuant to KRS 197.025(1). See, e.g., 09-ORD-044. That subsection provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
This section affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security." 96-ORD-179. We acknowledge that records documenting conflicts could reasonably be deemed to involve security risks for hostile incidents between inmates, and that the broad discretion of the commissioner or designee under KRS 197.025(1) would include the decision whether to redact the transfer recommendations requested by Mr. Lewis if they contain potentially inflammatory material.
With regard to any recommendations for transfers that were not acted upon, these would be subject to the exemption for "[p]reliminary recommendations" under KRS 61.878(1)(j). In those published cases and decisions of the Attorney General which refer to documents as losing their "preliminary" characterization, the exempt status is lost only because the document has been adopted as the basis of final agency action and made a part of that final action. See, e.g.,
Ky. State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953, 956 (Ky.App. 1983);
City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659 (Ky.App. 1982); 93-ORD-9; 97-ORD-168; 08-ORD-230. If a transfer recommendation was not implemented, then it was not adopted as the basis of a final action. Accordingly, any such document necessarily remains preliminary and need not be disclosed.
As for Mr. Lewis' request for the identities of persons who approved transfers, KRS 61.872(2) provides as follows: "Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." As noted in previous decisions of this office, requests for information are outside the scope of open records law and an agency is not obligated to honor a request for information under the law. 02-ORD-88; KRS 61.870 et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. At page 2 of 95-ORD-131, the Attorney General observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.
To the extent that Mr. Lewis' request was one for information not contained in a public record, RCC could therefore properly have denied the request on that ground, if it had in fact received such a request from Mr. Lewis.
We next address the request for copies of Corrections Policies and Procedures and KCHC policies or protocols. RCC asserts that under KRS 197.025(2) Mr. Lewis is not entitled to copies of the CPP's or KCHC protocols because they do not mention him by name.
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 of Corrections' 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 Corrections Policies and Procedures and KCHC protocols do not and would not mention Mr. Lewis specifically, KRS 197.025(2) applies.
Finally, as to Mr. Lewis' request for an "Insurance Policy and Coverage Plan" for inmates, RCC states that no such document exists. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. For all of these reasons, we believe RCC's response is consistent with the applicable 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.
Timothy John Lewis, # 155032, N-23Amy V. Barker, Esq.Tandy Wells, RCC