Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in the disposition of Clyde Kelley's June 3, 2012, request for "[a]ll documents and Disciplinary Reports pertaining to write up & investigation of myself Clyde Kelley -- 214270 & Thomas Manning - 163812 & David Thompson -- 167930, to include Part 1 & 2 of Disciplinary Report Forms & Occurrence Reports" for the March 30, 2012, incident, "DR # EKCC-2012-01089," and his June 27, 2012, request for "records and/or documents in which the [Department of Corrections] determine[d] that the records and/or tape records [sic] I requested is [sic] a threat or constitutes a threat to the security of other inmates [,] the institution or institutional staff. " EKCC denied the June 3 request on June 8, based on KRS 61.874(1), which, as the agency observed, "provides that a records custodian may require a written request and advance payment of fees for copying, and if applicable, postage. The Open Records Act does not provide for the waiver of reproduction charges for the indigent." EKCC denied the June 27 request on June 28, explaining that DOC "makes decisions concerning security risks under authority of KRS 197.025 and KRS 61.878(1)(l)" 1 but advising that "CPPs [Corrections Policies and Procedures] and IPPs [Institutional Policies and Procedures] are available for inmate viewing in the institution's library."
Prior decisions of this office applying
Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), including OAG 91-21 and 08-ORD-044, validate the agency's position relative to KRS 61.874(1) and CPP 6.1; however, the Attorney General is precluded from otherwise addressing the merits of the instant appeal relative to his June 3 request by operation of KRS 197.025(3), pursuant to which:
KRS 61.870 to 61.884 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropria te documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.
Mr. Kelley attempted to initiate an Open Records Appeal by letter dated June 27, 2012 (received in this office July 2, 2012), but failed to include the "appropriate documents" per KRS 61.880(2)(a). 2 KRS 197.025(3). By letter dated July 10, 2012, this office advised him of the deficiency in his appeal. Mr. Kelley resubmitted his appeal by letter dated July 11, 2012, after the statutory time frame of 20 days. 3 A rule of strict compliance applies to tardy appeals.
Johnson v. Smith, 885 S.W.2d 944 (Ky. 1994);
City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990). "Such appeals are subject to automatic dismissal." 12-ORD-121, p. 2.
In addressing Mr. Kelley's appeal relative to denial of his June 27 request, EKCC noted that he "seems to be asking for documents that justify the DOC's decision that records he requested were a security threat." EKCC reiterated that "DOC has legal authority pursuant to KRS 197.025(1) and 61.878(1)(l) to make decisions about records that pose a security threat and is not required to maintain records justifying its decisions." 4 To the extent Mr. Kelley was asking for "statutes or policies that apply to the security threat decision," EKCC correctly observed, "the DOC is not obligated to perform legal research for inmates and the statutes and policies are not public records which contain a specific reference to Mr. Kelley." EKCC further noted that "'KRS 197.025(2) expressly authorizes correctional facilities to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. ' 08-ORD-271, p. 3." Relying upon that provision, as well as KRS 61.878(1)(l) and prior decisions by this office, such as 03-ORD-073 and 04-ORD-076, EKCC asked this office to find that it did not violate the Open Records Act. Governing precedents again validate the agency's position. 5
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. This provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Because any existing documents potentially responsive to his request would not contain a specific reference to Mr. Kelley, as KRS 197.025(2) requires, Mr. Kelley 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; 12-ORD-119. Regardless of the hardship Mr. Kelley 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, EKCC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying his June 27 request. 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:Clyde Kelley, # 214270 Sonya WrightAmy V. Barker
Footnotes
Footnotes
1 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."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.
2 By its express terms, KRS 197.025(3) bars open records appeals submitted by an inmate 20 days after his request is denied. "Whatever hardship this may work on the inmate, the twenty day deadline for submission of a perfected open records appeal is not 'tolled' during the period of time that elapses between submission of a deficient appeal and submission of an appeal correcting these deficiencies." 12-ORD-121, p. 1.
3 Mr. Kelley also included a June 13, 2012, denial by EKCC of a request for "all tapes" based on KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and 99-ORD-47. However, as EKCC correctly argued in response to his appeal, Mr. Kelley did not include a copy of the written request which prompted this denial; accordingly, this office is precluded from reviewing the actions of the agency relative thereto per 40 KAR 1:030, Section 1, pursuant to which the "Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial." See 11-ORD-153.
4 This assertion is correct. Having consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in determining whether disclosure of certain records would constitute a threat to the security of the inmate requester, any other inmate, the correctional staff, the institution, or any other person, this office has declined to substitute its judgment for that of correctional facilities or the DOC. See 10-ORD-005; 11-ORD-170. EKCC cannot produce that which it does not have. A public agency cannot afford a requester access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6. In the absence of a prima facie showing that any such records would or should exist, EKCC's disposition of the request would be affirmed in accordance with Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) even if KRS 197.025(2) was not controlling. Compare 11-ORD-074 ("existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable).
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, EKCC would not have been required to comply with Mr. Kelley's request even if KRS 197.025(2) was not controlling.