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 although its response was procedurally deficient, Eastern Kentucky Correctional Complex did not otherwise violate the Open Records Act in the disposition of Chris Hawkins' February 13, 2014, open records request for six records sets identified below. In supplemental correspondence directed to this office, EKCC acknowledges through counsel that "its response should have contained additional details in order to fully comply with open records law requirements." Given the Court of Appeals' past determination that an agency response to an open record request should provide "particular and detailed information," 1 and the Supreme Court's recent determination that the agency "should provide the requesting party with sufficient information about the nature of the withheld record to permit the requester to dispute the claim [of exemption]," 2 we agree. Nevertheless, based on additional information furnished in its supplemental response, we affirm EKCC's denial of Mr. Hawkins' request.
1. Pre-Parole Progress Report completed on February 3, 2014, by Melissa McIntosh
Mr. Hawkins vigorously asserts that he is vested with a right of access to his Pre-Parole Progress Report (PPPR) so that it can be corrected prior to his June 2014 parole hearing, noting that much, if not all, of the information it contains is accessible in other records. Additionally, he identifies several irregularities in the timing and manner of its creation. EKCC responds that because no action has been taken on the PPPR it is a preliminary document shielded from disclosure by KRS 61.878(1)(j). Even more persuasively, EKCC asserts that the PPPR is excluded from inspection by KRS 439.510. 3 We affirm EKCC's denial of Mr. Hawkins' request on these bases, adopting the analysis set forth in 12-ORD-230. A copy of that open records decision, to which Mr. Hawkins was a party, is attached hereto and incorporated by reference. As a statutorily protected record upon which no final action has been taken, the requested PPPR is exempt from inspection. Although recourse may exist for challenging the content of the report, and irregularities in its preparation, the Open Records Act focuses exclusively on access rights or restrictions.
2. Corrections Policies and Procedures relating to specified subjects
Mr. Hawkins also asserts his right of access to Corrections Policies and Procedures (CPPs) relating to out-of-state transfers, Pre-Parole Progress Reports, and Risk Assessments for Parole Hearings, noting that he is housed in Administrative Segregation and unable to review the policies in EKCC's law library. EKCC responds that because the CPPs do not contain a specific reference to Mr. Hawkins, KRS 197.025(2) erects a legal barrier to access. 4 Our conclusion is supported by the analysis found in 08-ORD-187, a copy of which is attached hereto and incorporated by reference. Whatever impediments to use of the facility's law library his current housing assignment impose, Mr. Hawkins enjoys no greater right of access to records that do not contain a specific reference to him. EKCC properly denied these requests.
5. Documents/Extraordinary Occurrence Reports generated by Green River Correctional Complex security staff and administrators relating to injuries Mr. Hawkins sustained on May 18, 2013
Mr. Hawkins next asserts a right of access to records generated by Green River Correctional Complex (GRCC) staff in the wake of an incident that occurred at GRCC on May 18, 2013, during the course of which he sustained injuries. EKCC responds that unless records relating to the incident were entered by GRCC staff into KOMS, they are inaccessible to EKCC and Mr. Hawkins must redirect his request to GRCC. 5 Having searched KOMS, EKCC advises, only one responsive record was located. That record, a detention order for Mr. Hawkins, was disclosed to him, thus mooting the issue on appeal vis-a-vis EKCC. 6 Any objections Mr. Hawkins has concerning the manner in which GRCC maintains EORs, and reports related to them, must be raised in an appeal of GRCC's actions if such an appeal is not time barred. 7
6. Detention EOR's and/or disciplinary reports issued to all inmates as a result of the injuries Mr. Hawkins sustained in the incident that occurred at GRCC on May 18, 2013
Finally, Mr. Hawkins demands access to EORs and disciplinary reports issued to other inmates following the May 18, 2013, incident in which he was assaulted. EKCC responds that the omission of the names of the inmates implicated in the attack precludes access to responsive records. Counsel for EKCC explains:
EKCC staff would first have to determine which inmates were incarcerated at GRCC on 5/18/13 and then search each electronic record of each inmate to determine if any detention order or disciplinary write up contained a reference to inmate Hawkins.
Based on the number of inmates incarcerated at GRCC on that date, and the amount of time needed to review each inmate file, EKCC estimates that it would be required to expend one thousand hours to fulfill Mr. Hawkins' request. For this reason, EKCC asserts, fulfillment of Mr. Hawkins request would impose an unreasonable burden on EKCC. We do not reach this issue, but focus, instead, on the specificity of that request.
In EKCC's original response, Open Records Coordinator Sonya Wright asked that Mr. Hawkins "be more specific" by providing the names of the inmates who assaulted him on May 18, 2013. Absent at least this degree of specificity, Mr. Hawkins' request was not "adequate for a reasonable person to ascertain its nature and scope." Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). This is especially true in light of the fact that all hard copy records relating to the incident are maintained at GRCC where the incident occurred . Even if Mr. Hawkins was attacked by assailants unknown to him, GRCC exclusively maintains non-KOMS records relating to the incident that are likely to yield the records sought. As the Kentucky Supreme Court observed in a recent opinion, an open records requester should "describe the records he seeks so as to make locating them reasonably possible. " City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 855 (Ky. 2013). If, in fact, Mr. Hawkins requested these records from GRCC and GRCC failed to respond, as he alleges, he should pursue an appeal of that facility's actions if such an appeal is not time-barred. 8 EKCC did not violate the Open Records Act in requesting that he provide the names of his assailants "so as to make locating [the requested records] reasonably possible. " Id.
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, # 103061Sonya WrightAmy V. Barker
Footnotes
Footnotes
1 Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
2 City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013).
3 KRS 439.510 provides:
All information obtained in the discharge of official duty by any probation or parole officer shall be privileged and shall not be received as evidence in any court. Such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet, or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet. Information shall be made available to sex offender treatment programs operated or approved by the Department of Corrections or the Department for Behavioral Health, Developmental and Intellectual Disabilities who request the information in the course of conducting an evaluation or treatment pursuant to KRS 439.265(6), 532.045(3), or 532.050(4).
4 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 .
(Emphasis added.)
5 Mr. Hawkins insists that he did, in fact, submit a request for these records to GRCC but received no response. That issue has no bearing on the instant appeal but may be pursued in a separate appeal if not time-barred by KRS 197.025(3). The latter statute provides:
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 appropriate 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.
6 40 KAR 1:030 Section 6 thus provides:
If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
7 See note 5, above.
8 See note 5, above.