Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that although inmate Charles Helton was not entitled to a "complete copy of his institutional file," the Department of Corrections violated the Open Records Act in partially denying his June 7, 2010, request without identifying all of the records withheld and the statutory basis for withholding those records. Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008) is dispositive of the issue on appeal.
On June 8, 2010, DOC's Offender Information Services notified Mr. Helton that:
Certain documents contained in an offender record are exempt from disclosure. Examples of documents exempt from disclosure include, but are not limited to, the following: Presentence/Postsentence Investigation Reports [KRS 61.878(1)(l)], Pre-Parole Progress Reports [KRS 61.878(1)(j) and KRS 439.510], Victim Impact Statements [KRS 61.878(1)(a)], and documented Inmate Conflicts [KRS 197.025(1) and KRS 61.878(1)(l)], Letters from private individuals that may have been presented to the Parole Board [KRS 61.878(1)(i) and (j)], Other documentation filed by the Department of Probation and Parole;
DOC then quoted the language of KRS 439.510 and agreed to provide Mr. Helton with copies of 167 pages from his institutional file upon prepayment of copying and postage charges. Shortly thereafter Mr. Helton initiated this appeal, demanding full access to his institutional file for the purpose of "contradict[ing] unlawful and wrongful information used against" him resulting in his twenty-eight year confinement. 1
In supplemental correspondence directed to this office, DOC reaffirmed its June 8 partial denial of Mr. Helton's request, citing numerous authorities supporting its position. "The remaining documents exempted from disclosure, " DOC concluded, "are well documented in DOC's response to Mr. Helton, and [DOC] will not belabor their propriety here." It is by no means clear to this office what those "remaining documents" are and whether they are, in fact, "exempted from disclosure. "
The Kentucky Supreme Court addressed this precise issue in Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), a copy of which is attached hereto and incorporated by reference. At page 660 of that opinion, the Court declared that with the exception of the requirements for inmate requests found at KRS 197.025:
[T]he open records laws identify no class or type of persons, even prisoners, who are held to a more stringent standard when submitting open records requests. And this presumption in favor of broad availability of records is ever stronger when a [n inmate] . . . seeks access to public records pertaining to himself. So the DOC bears the burden to rebut the strong presumption in favor of disclosure.
Chestnut was an inmate who requested a copy of the nonexempt records in his own inmate file, and the Court affirmed his right thereto. The Court generally rejected DOC's argument that its "obligat[ion] to sift through any requested materials in order to determine which documents (or portions of a document) must be redacted" created an unreasonable burden within the meaning of KRS 61.872(6), suggesting that DOC could "reorganize its materials in such a manner as to more easily facilitate open records review by inmates, the general public, and DOC personnel." Id. at 664-665. Nevertheless, the Kentucky Supreme Court agreed with DOC "that certain items in an inmate's institutional record, such as inmate conflict notification forms, may be exempt from public disclosure, " placing its trust in DOC to "scrupulously perform its duty to ensure that any privileged materials are not provided to inmates, or to anyone else, under an open records request." Id. at 666.
In the appeal before us, DOC discharged this duty to the extent it reviewed Mr. Helton's institutional file and disclosed 167 pages of nonexempt records. DOC partially discharged its corollary duty to withhold exempted records by identifying five categories of records that are protected from inspection, and citing the statute supporting nondisclosure. DOC did not, however, fully discharge its obligation to "include a statement of the specific exception authorizing the withholding of the [remaining] record[s] and a brief explanation of how the exception applies to the record[s] withheld. " KRS 61.880(1). Its June 8 response to Mr. Helton's requests cites several examples of excluded records but indicates that the excluded records are "not limited to" those examples. In its supplemental response, DOC indicates that "the remaining documents exempted from disclosure . . . are well documented. " Respectfully, we disagree.
DOC acknowledges the existence of additional records to which it denied Mr. Helton access, but does not identify those records or the statutory basis for withholding them. Consistent with the requirements found at KRS 61.880(1), it is incumbent on DOC to provide Mr. Helton with a supplemental response to his June 7 request in which it identifies any other records withheld and the statutory exception supporting agency denial. While he is not be entitled to his complete institutional file, Mr. Helton is entitled to know all of the records to which he was denied access and why.
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.
Charles HeltonJonathan MilbyJessica Barrett
Footnotes
Footnotes
1 In his letter of appeal, and supplements to his appeal, Mr. Helton asserts several constitutional rights and expresses concern about the possibility that he has been confused with a different Charles Helton. Our limited authority under KRS 61.880(2) precludes us from addressing these issues.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -