Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Justice and Public Safety Cabinet violated the Open Records Act in ultimately denying Uriah Pasha's April 19, 2010, request for a copy of "the [r]egulation that the Kentucky Department of Corrections promulgated to determine how a [p]risoner's Minimum Expiration Date is assessed, calculated, adjusted, and arrived at in accordance with KRS 439.555 - Minimum Expiration Date, to show how the Dept. credits and deducts Good Time from a [p]risoner's sentence" and his April 19 request for a copy of the "Ky. Administrative Regulation that the [DOC] promulgated to determine how . . . KRS 197.045(1) . . . [i]s to be applied." Although this office is unable to conclusively resolve the factual issue of whether the Cabinet actually received Mr. Pasha's April 19 requests, and therefore makes no finding in this regard, the Cabinet ultimately invoked KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 which is the proper statutory basis for denying access.
Upon receiving notification of Mr. Pasha's appeal from this office, Assistant General Counsel Amy V. Barker provided this office with a response on behalf of the Cabinet. Ms. Barker explained that a review of the agency's request log did not indicate that the two requests from Mr. Pasha were received at the Cabinet. "One staff person in the office who periodically opens mail indicated that the request seemed familiar," Ms. Barker noted, "but was not certain if it was because she saw similar requests from another inmate or if she actually saw the requests from Mr. Pasha." Ms. Barker was able to state with certainty that the staff to whom that individual would have sent Mr. Pasha's requests did not receive them. In sum, the Cabinet "cannot determine for certain whether or not Mr. Pasha's requests were received." However, Ms. Barker has "reminded staff of the proper way to handle an open records request."
As in 08-ORD-150, 07-ORD-178, 05-ORD-013, and 03-ORD-061, the record on appeal contains insufficient evidence concerning the actual delivery and receipt of the requests at issue for this office to conclusively resolve the related procedural issue. It stands to reason that a public agency such as the Cabinet cannot respond to a request(s) which it does not receive, and the limited evidence presented on this issue does not establish that the Cabinet actually received Mr. Pasha's April 19 requests. See 05-ORD-222; 03-ORD-052. Absent objective proof to validate Mr. Pasha's position, this office cannot determine that the Cabinet violated the Act from a procedural standpoint by failing to issue a written response within five business days per KRS 197.025(7); accordingly, this office makes no finding in that regard. In sum, the role of the Attorney General in adjudicating a dispute arising under the Open Records Act is narrowly defined by KRS 61.880(2), and this office is without authority to deviate from that statutory mandate.
That being said, the Cabinet was authorized to deny access, even assuming the requests were received. In addressing the merits of Mr. Pasha's appeal, Ms. Barker argued that Mr. Pasha "was not entitled to obtain copies of regulations under the Open Records Act. A regulation retained by an agency is not the type of record required to be provided under the Act." In support of this argument Ms. Barker cited 99-ORD-35, 99-ORD-181, 01-ORD-5, 01-ORD-98, 03-ORD-140, and 05-ORD-055, and correctly observed that Mr. Pasha is asking the agency to "perform legal research for him." Although Ms. Barker's assertion that a public agency such as the Cabinet "is not obliged to perform research in the manner requested" is accurate, further consideration of this argument is unwarranted given that she also invoked KRS 197.025(2). In so doing, Ms. Barker explained that "regulations and Corrections Policies and Procedures are permanent records" of the DOC, which "do not contain a specific reference to Mr. Pasha and are exempt pursuant to KRS 61.878(1)(l)." Ms. Barker advised that Mr. Pasha "may perform his own legal research in the inmate law library at his facility when he is in the general population and he may use the legal aide system for this research when he is in the segregation unit."
As the Attorney General has consistently recognized, KRS 197.025(2) expressly authorizes the Cabinet to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. Because the regulations at issue do not contain a specific reference to Mr. Pasha, as required under KRS 197.025(2), he is not entitled to inspect or to receive copies of those records, notwithstanding his underlying concerns. As recently as May 20, the Attorney General reaffirmed this position, upholding a denial by Luther Luckett Correctional Complex, the correctional facility where Mr. Pasha is currently incarcerated, of a nearly identical request by another inmate for the policies requested here. In our view, the analysis contained in that decision, 10-ORD-104 (Justin Murray/Luther Luckett Correctional Complex), and 03-ORD-073, the decision upon which 10-ORD-104 was premised, is controlling; a copy of each decision is attached hereto and incorporated by reference. See also 09-ORD-057. Regardless of the hardship Mr. Pasha may believe that application of KRS 197.025(2) imposes, he is expressly precluded from gaining access to records which do not contain a specific reference to him by the mandatory language of this provision; accordingly, the Cabinet properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in withholding the specified regulations. 99-ORD-161, p. 2. See also 07-ORD-219.
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.
Uriah Pasha, # 92028Amy V. Barker
Footnotes
Footnotes
1 KRS 61.878(1)(l) removes from application of the Open Records Act all "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
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