Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in denying Uriah Pasha's September 28, 2011, request for a "copy of the report(s) C/O Powell submitted to CUAII Simpson to support the disciplinary report Mrs. Simpson wrote against Uriah Pasha 9-28-2011; and, a copy of all disciplinary reports currently pending against Uriah Pasha." In a timely written response, KSR denied Mr. Pasha's request for the report by Officer Powell, citing KRS 61.878(1)(g), (h), (i), and (j), but referencing language from only the latter two exceptions, 1 and further denied his request for disciplinary reports, quoting the language of KRS 61.878(1)(h) without explanation. Mr. Pasha initiated this appeal by letter dated October 6, 2011, noting that the requested disciplinary reports were "signed and dated September 28, 2011, meaning their disclosure could not be premature within the meaning of KRS 61.878(1)(h). In response, KSR advised that as of September 28, Mr. Pasha had one pending disciplinary action. Mr. Pasha was placed in administrative segregation on September 1, 2011, "the report was completed by the reporting employee on September 30, 2011," and he signed the report on October 4, 2011; accordingly, the report was incomplete on the request date. However, KSR has now provided Mr. Pasha with a copy of the disciplinary report. Any related issues are thus moot per 40 KAR 1:030, Section 6. The remaining question is whether KSR properly denied Mr. Pasha's request for a copy of the "report(s) C/O Powell submitted to CUAII Simpson . . ." Although KSR failed to satisfy its burden of proof relative to KRS 61.878(1)(h), as in 11-ORD-175 (In re: Uriah Pasha/KSR, issued October 31, 2011), the agency later invoked KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). The denial is affirmed on that basis.
In 11-ORD-075, this office found that KSR failed to satisfy its burden of proof in denying Mr. Pasha's September 28 request for a copy of "'reports submitted by or recorded from Officer Fibby Powell that caused Uriah Pasha to be placed in Admin. Seg. On September 1, 2011' on the basis of KRS 61.878(1)(h)." Id., p. 1. The Attorney General was unable to affirm the agency's initial disposition of the request in the absence of any "explanation of how premature release of the requested reports would harm the agency, the investigation, or adjudication in this matter." Id., p. 2. KSR failed to provide any such explanation here as well. However, as in 11-ORD-175, KSR belatedly invoked KRS 197.025(1)(incorporated into the Act per KRS 61.878(1)(l)), pursuant to which correctional facilities are permitted to deny access to records the disclosure of which is deemed "to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." Because the instant appeal presents no reason to depart from 11-ORD-175, the analysis contained therein is controlling; a copy of that decision is attached hereto and incorporated by reference. "Given the factual context out of which this appeal arises," which is nearly identical to that which resulted in the former appeal, this office again has no basis to question the agency's position that disclosure of the report(s) in dispute would constitute a legitimate security threat. Id. The final disposition of Mr. Pasha's request by KSR is affirmed.
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.
Distributed to:
Uriah Pasha, # 1092028Marc AbeloveLinda M. Keeton
Footnotes
Footnotes