Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Marion Adjustment Center violated the Kentucky Open Records Act in denying Danny Angel's May 16, 2012, request for a copy of " Byerly v. Ashley (Court of Appeals case)," "CPP 15.8," "Hensley v. Wilson, 850 F.2d 269 (6th Cir. 1988)," "CPP 16.1," and "the PREA Policy of investigations." In a timely written response, MAC advised Mr. Angel that "KRS 197.025 . . . does not require [sic] to comply with a request for any record from a confined inmate unless the request is for a record which contains a specific reference to that individual." MAC also suggested that Mr. Angel "get with your unit team and/or legal [aide] to assist you in policy reviews or case law study." Upon receiving notification of Mr. Angel's appeal challenging this denial, Assistant General Counsel Cole Carter, Corrections Corporation of America, responded on behalf of MAC, reaffirming the agency's reliance on KRS 197.025, 1 but acknowledging that MAC failed to "identify the specific section of that statute that covers the exemption, section (2)." Mr. Carter also noted that he "asked the custodian to provide a more specific reference along with the explanation for the application of the exemption in all future replies." With the exception of the acknowledged procedural deficiency, 2 this office finds no error in the disposition of Mr. Angel's request.
As the Attorney General has consistently recognized, KRS 197.025(2) expressly authorizes correctional facilities under the jurisdiction of the Department of Corrections, whether state or local, to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. 3 This provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 4 Because the records at issue do not contain a specific reference to Mr. Angel, as KRS 197.025(2) requires, he is not entitled to inspect or to receive copies of those records, notwithstanding his underlying concerns. The analysis contained in 03-ORD-073 (regarding application of KRS 197.025(2) generally) and 09-ORD-057 (affirming denial by Northpoint Training Center of request for certain policies and procedures on the basis of KRS 197.025(2)) is controlling; a copy of each decision is attached hereto and incorporated by reference. See 09-ORD-221; 10-ORD-109. Regardless of the hardship Mr. Angel believes that application of KRS 197.025(2) imposes on the facts presented, 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, MAC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying his request. 5 99-ORD-161, p. 2. To hold otherwise would "defeat the purposes for which KRS 197.025(2) was enacted." 00-ORD-2, p. 1.
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:
Danny Angel, # 160415Daniel AkersCole CarterAmy V. Barker
Footnotes
Footnotes
1 Mr. Carter explained that CPP 15.8 and 16.1, the policies in dispute, are entitled "Unauthorized Substance Abuse Testing" and "Inmate Visits," respectively. "Both contain general directives," he correctly observed, "and neither is specific to any one inmate. Both CCA and [the Department of Corrections] have policies addressing the Prison Rape Eliminat[ion] Act [of 2003] (PREA), but neither contains a specific reference to the requestor." Mr. Carter also correctly noted that Mr. Angel "sought copies of Byerly v. Ashley and Hensley v. Wilson , neither of which contain[s] a reference to him."
2 Because MAC has acknowledged this error, and the law regarding application of KRS 61.880(1) is well-established, this office will not unnecessarily belabor the point, but trusts that MAC will respond with adequate specificity in the future.
3 KRS 197.025(2) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
4 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."
5 Public agencies have no statutory obligation to conduct legal research "by locating relevant statutes and regulations pertaining to the subject of the request." 00-ORD-130, p. 4. In addition, this office has recognized that "legal research or reference materials, such as those found in an inmate law library, do not generally fall within the definition of a 'public record' codified at KRS 61.870(2), and therefore are not generally subject to the requirements of the Open Records Act. " 00-ORD-176, p. 2. Although such materials might "'technically qualify as 'public records' due to being in the possession of or retained by a public agency, '" this office has nevertheless consistently held that disclosure of such materials "'would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act. '" 08-ORD-114, p. 7, citing 99-ORD-35, p. 4; 10-ORD-207. Accordingly, MAC would not have been required to comply with Mr. Angel's request even if KRS 197.025(2) was not controlling.