Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Luther Luckett Correctional Complex violated the Open Records Act in denying Chris Hawkins' December 18, 2013, request for a copy of the "transfer authorization form done in Dec/2013 @ LLCC." Based on our analysis in 09-ORD-088, we find that LLCC properly relied on KRS 61.878(1)(i) and (j) in denying Mr. Hawkins' request because a final decision on his transfer had not been made on or before the date of his request. 1
In 09-ORD-088, the Attorney General affirmed a correctional facility's denial of an inmate request for access to transfer authorization forms on the basis of KRS 61.878(1)(i) and (j). We reasoned:
With regard to any recommendations for transfers that were not acted upon, these would be subject to the exemption for "[p]reliminary recommendations" under KRS 61.878(1)(j). In those published cases and decisions of the Attorney General which refer to documents as losing their "preliminary" characterization, the exempt status is lost only because the document has been adopted as the basis of final agency action and made a part of that final action. See, e.g., Ky. State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953, 956 (Ky. App. 1983); City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659 (Ky. App. 1982); 93-ORD-9; 97-ORD-168; 08-ORD-230. If a transfer recommendation was not implemented, then it was not adopted as the basis of a final action. Accordingly, any such document necessarily remains preliminary and need not be disclosed.
09-ORD-088, p. 3, 4. A copy of 09-ORD-088 is attached hereto and incorporated by reference.
At the time of his open records request, December 18, 2013, the transfer recommendation relating to Mr. Hawkins had not been implemented. He remained at LLCC until sometime after January 27, 2014, when he notified this office that his transfer to EKCC "wasn't approved by all relevant KDOC administrators." On February 7, 2014, LLCC advised us that Mr. Hawkins "was incorrect in his statements that a decision had been made to not transfer him" and that he was, in fact, transferred to EKCC "during the pendency of this appeal." From this correspondence, we must conclude that a final decision to transfer Mr. Hawkins was made after January 27 but before February 7. At this point, the transfer authorization form forfeited its preliminary characterization. 2
Mr. Hawkins alleges violation of his due process rights based on LLCC's "withholding [of] the exculpatory document until after [his] adjustment hearing." The Attorney General cannot resolve this claim in the context of an open records appeal. KRS 61.880(2)(a) restricts our authority to "review[ing] the request and denial and issu[ing] . . . a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884 ." Mr. Hawkins' due process claim must, therefore, be presented elsewhere.
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:
Chris Hawkins, # 103061Heather McManisAmy V. Barker
Footnotes
Footnotes