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 Kentucky State Reformatory improperly relied on KRS 61.872(5) in denying David Brown's September 12, 2011, request for a copy of the "appeal and supplemental appeal from his Category 6-4 Disciplinary Report Part II adjustment hearing dated August 25, 2011." We further find that the issue on appeal was not mooted when KSR gave Mr. Brown "a copy of the final decision" rendered by the warden within thirty days of the disciplinary proceedings. Mr. Brown submitted an open records request for a copy of the "appeal and supplemental appeal" from his adjustment hearing, and tendered an "inmate money transfer authorization" to cover the cost of copies. KSR "gave" Mr. Brown a copy of the warden's final decision sometime after September 21, 2011, asserting in the interim that "the document was not available pursuant to KRS 61.872(5)" because it "was in the possession of the warden who was reviewing the appeal of the disciplinary proceeding" at Mr. Brown's request. KSR's position is internally inconsistent.
Mr. Brown requested the "appeal and supplemental appeal" from his adjustment hearing. KSR originally responded that the warden "has your appeal and stated that she has 30 days in which to respond," denying Mr. Brown's request under authority of KRS 61.872(5) because "the public record(s) is [sic] in active use, in storage, or not otherwise available." KSR included the parenthetical "(s)" suggesting that it was aware Mr. Brown's request encompassed multiple records, "the appeal and supplemental appeal," and not a single record, the warden's "response." Nevertheless, KSR concluded that the warden would "forward [Mr. Brown] her response when completed." In correspondence directed to this office after Mr. Brown filed his open records appeal, the Department of Corrections declared the matter "moot" arguing that on the day Mr. Brown submitted his request the "document" he sought was "in the possession of the warden who was reviewing the appeal of the disciplinary proceeding pursuant to" Mr. Brown's request. In closing, the Department asserted that the warden "rendered her decision on September 21, 2011, . . . and following this [Mr. Brown] was given a copy of the final decision, " thereby mooting the issue on appeal. We disagree.
Mr. Brown did not submit an open records request for the warden's final decision from his appeal. While we acknowledge the possibility that Mr. Brown was unclear on the proper terminology, he asked for a copy of the "appeal and supplemental appeal." 1 Those records, KSR originally asserted, were "in active use" by the warden. This was not a sufficient rationale for nondisclosure of the "appeal and supplemental appeal" insofar as copies could have been made and released to Mr. Brown with little or no disruption to the warden's review. KRS 61.872(5) should be invoked only where circumstances prevent the agency from immediately producing copies. Such was not the case here. Nor was it a sufficient rationale for nondisclosure of the warden's final decision if Mr. Brown misidentified the record in his request and it was the record actually sought. The decision might have been withheld as a preliminary draft, pursuant to KRS 61.878(1)(i), if it had not been completed on the day of Mr. Brown's request, but it was not a record that was "in active use, in storage, or not otherwise available" within the meaning of the Open Records Act.
In all respects save one, the belated disclosure of the warden's final decision and subsequent assertion that disclosure mooted the issue on appeal, KSR treated Mr. Brown's request as a request for the "appeal and supplemental appeal." These were, in fact, the records to which he requested access and for which he submitted an inmate money transfer authorization. KSR did not "moot" the issue on appeal by "giving" Mr. Brown a copy of the warden's final decision sometime after she reached it. Pursuant to 40 KAR 1:030 Section 6, a records access dispute is mooted after the requester initiates an open records appeal only if "the requested documents are made available to" him. KSR has not provided Mr. Brown with a copy of the "appeal and supplemental appeal" from his August 25, 2011, adjustment hearing, and its refusal to do so on the basis of KRS 61.872(5) constitutes a violation of the Open Records Act.
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:
David Brown, # 160985Marc AbeloveWesley W. Duke
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