Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Kentucky State Reformatory violated the Kentucky Open Records Act in denying Lawrence Froman's September 4, 2010, request for "ANY and ALL labels from ANY & ALL ingredients used in the Kosher Kitchen at KSR. This is to include, any lab[el]s from boxes, bags, sacks, cans, plastic bags, bread wrappers/ bags, and anything used in the line of preaparation [sic] of the Kosher food in the KRS dining room[, such as, lable [sic] from the cans of peas, carrots, mash potatoes [sic], rice, noodles, any & all wrappers from meat used, seasoning, spices, butter, peanut oil, and any & all other materials used in cooking the Kosher meals here at KSR." According to Mr. Froman, he waited 30 days before initiating this appeal due to receiving no response; however, in responding to his appeal Staff Attorney Stafford Easterling, Justice and Public Safety Cabinet, advised that having reviewed the Kentucky Offender Management System, he found "no indication that KSR ever actually received Inmate Froman's Open Records request." In addition, KSR Offender Records Custodian Marc Abelove confirmed for Mr. Easterling that no such request was received. Based upon the following, this office must affirm the denial of Mr. Froman's request.
The record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Froman's request for this office to conclusively resolve the related factual discrepancy. Absent objective proof, this office does not have any reason to question the veracity of Mr. Easterling or Mr. Abelove and thus cannot find KSR committed a procedural violation. See 07-ORD-046. Mr. Easterling is correct in asserting that "KSR cannot respond to a request" it never received. Mr. Easterling went on to deny Mr. Froman's request on the merits, arguing that, for example, "a nutritional label on a sack of potatoes is not a public record and is not subject to the Open Records Act. " He further contended that Mr. Froman's "blanket request for all such labels is overly broad and not adequately specific. Accordingly, Inmate Froman's request would have been properly denied, if it had been submitted." This office agrees that Mr. Froman's request can be properly denied, albeit on a different statutory basis.
The question presented in this appeal was conclusively resolved in 03-ORD-150, a copy of which is attached hereto and incorporated by reference. In 03-ORD-150, the Fayette County Detention Center denied an inmate's request to inspect "the labels of bread, coffee, juice, [and] roast beef served to [him] as 'Kosher'," among other things. The Attorney General affirmed the denial on the basis of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 concluding that "[u]nder no construction of KRS 197.025(2), as amended [in 1998], can it be said that . . . 'the labels of bread, coffee, juice, [and] roast beef served . . . as Kosher' . . . 'contain a specific reference to [the inmate] ." The reasoning contained in 03-ORD-150 is directly on point. Because KRS 197.025(2) dictates the result of this appeal, consideration of the alternative bases for denial set forth by the agency is unnecessary.
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.
Lawrence Froman, # 100759Marc AbeloveStafford Easterling
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold "[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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