Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Penitentiary violated the Kentucky Open Records Act in denying Herbert Smith's October 5, 2009, request for thirteen categories of documents relating to food service at KSP. In a timely written response, Deputy Warden Alan Brown denied Mr. Smith's request, in which Mr. Smith explained that both KSP inmate Thomas Mitchell, and his girlfriend, Judy Scaccia, acting on Mr. Mitchell's behalf, tried unsuccessfully on separate occasions to obtain the documents under the Open Records Act. Deputy Warden Brown denied Mr. Smith's request on the basis of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), because none of the documents contain a "specific reference" to Mr. Mitchell, inmate "legal aide," on whose behalf Mr. Smith, a former inmate, was presumably acting. Mr. Smith and Mr. Mitchell are fellow plaintiffs in a pending civil action which a group consisting primarily of inmates apparently filed against KSP. By letter dated November 21, 2009, Mr. Smith initiated this appeal, indicating that Deputy Warden Brown's "assumption is in error." As a litigant in "Civil Action 5:09-CV-P3-R" and a "public citizen," Mr. Smith maintains that he is entitled to access the documents in dispute under the Open Records Act. Having reviewed the record on appeal in light of prior decisions, including 04-ORD-214, 05-ORD-252, and 09-ORD-158 (Judy Scaccia/KSP), this office must respectfully disagree.
Upon receiving notification of Mr. Smith's appeal from this office, Staff Attorney Jonathan S. Milby, Justice and Public Safety Cabinet, responded on behalf of KSP. In defense of the agency's denial, Mr. Milby explained:
In his appeal, Mr. Smith states that Deputy Warden Brown was incorrect in his assertion that Mr. Smith was requesting these records at the behest of Inmate Mitchell. However, his open records request makes it clear that this is exactly the purpose of his request. He states that Inmate Mitchell has been assisting other inmates with a civil action, and that he has been attempting to obtain this evidence via the Open Records Act. Mr. Smith goes on to mention Ms. Scaccia, who previously appealed to this office in an attempt to compel the Department of Corrections to provide these same documents for the benefit of Inmate Mitchell. It is abundantly clear from the topics discussed in his open records request and letter of appeal that Mr. Smith is requesting these records for the same purpose as Ms. Scaccia - to furnish them to Inmate Mitchell. As this office has previously held in 09-ORD-158, 05-ORD-252, 04-ORD-214, and 00-ORD-182, this is not permitted?
As stated above, Mr. Smith's open records request and appeal to this office provide sufficient objective indicia to show that there is identity of purpose between himself and Inmate Mitchell. His request references Inmate Mitchell and indicates that his requests for these records have been denied. He cites Ms. Scaccia's lack of success in obtaining the records for Inmate Mitchell. He then ends his letter by asserting that he is a party litigant and not an inmate. As the litigation he speaks of is that which he indicated Inmate Mitchell was coordinating, and as it currently involves several inmates, his purpose is clearly to provide the documents to Inmate Mitchell. As this office and the Kentucky Supreme Court have previously held, this is impermissible.
. . . In [04-ORD-214], the Cabinet confronted the same factual situation presented here, arguing that:
[04-ORD-214, pp. 2-3.] The Attorney General's [O]ffice agreed, holding that "[w]here, as here, sufficient objective indicia exist to establish an identity of purpose between an inmate and a non-inmate, this office will not require disclosure of records to the latter, thereby undermining the purpose for which KRS 197.025(2) was enacted." [Id., p. 6.] The precedent[s] of this office clearly recognize[] the legality of denying an open records request where it is clearly made on behalf of an inmate not entitled to the records requested.
In sum, Mr. Milby argued, the "law established on this point is clear - one person may not make an end run around the Open Records Act by employing or enlisting another to make the impermissible request on their behalf." As Mr. Milby correctly observed, "Mr. Smith has cited no precedent to the contrary, and has made it clear that his legitimate motivation behind the request is to provide the records to inmate Mitchell." We agree. 1
As in the decisions upon which Mr. Milby relied, "sufficient objective indicia exist to establish an identity of purpose between an inmate [Mr. Mitchell] and a non-inmate [Mr. Smith]." Accordingly, disclosure of the records in dispute would "undermin[e] the purpose for which KRS 197.025(2) was enacted." In our view, the reasoning contained in 04-ORD-214 and 05-ORD-252, which is adopted in 09-ORD-158, is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
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.
Herbert SmithAlan BrownJonathan S. Milby
Footnotes
Footnotes
1 In the alternative, Mr. Milby correctly argued that "Mr. Smith's status as a party [in the pending civil action] is irrelevant as it relates to the Open Records Act" under Kentucky Lottery Corporation v. Stewart, Ky., 41 S.W.3d 860 (2001). Although Mr. Smith partially relied on that case in filing his appeal, the Court agreed "with those Attorney General's Opinions which opine that an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation," and so held. Id. at 864.