14-ORD-199
October 2, 2014
In re: Levette Douglas/Lexington-Fayette Urban County Government
Summary: In the absence of any evidence to refute agency’s position that appellant’s request was not received, the Attorney General is unable to conclusively resolve the related factual issue or find that a violation of KRS 61.880(1) was committed. Because the requested policies and procedures do not contain a specific reference to inmate requester, she was not entitled to receive a copy under KRS 197.025(2) even assuming the Lexington-Fayette Urban County Government had received her written request.
Open Records Decision
Levette Douglas initiated this appeal challenging the alleged inaction of the Lexington-Fayette Urban County Government (LFUCG), Division of Community Corrections relative to her August 6, 2014, request for “the opportunity to view and copy any and all public documents of policy and procedure dealing with and pertaining to 1) Administrative Segregation per Federal Inmate 2) Disciplinary write ups an due process as well as 2b. Disciplinary appeals per Federal Inmate.”1 Upon receiving notification of Ms. Douglas’s appeal from this office, LFUCG advised that the Division of Community Corrections never actually received a copy of the handwritten document attached to Ms. Douglas’s appeal, entitled, “Open Records Request Per KRS 61.871 – 61.874.” In addition, even if Ms. Douglas had properly submitted an Open Records Request asking for the policies and procedures of the Division of Community Corrections relating to administrative segregation and disciplinary write-ups and appeals, LFUCG could have properly denied it on the bases of KRS 197.025(2) and (6).
This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-204. As in the cited decisions, the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Ms. Douglas’s request for this office to conclusively resolve the related factual issue. This office has no reason to question Ms. Douglas’s position; however, the record is equally lacking in terms of any basis to question the veracity of LFUCG or conclusively refute its position. Absent irrefutable proof that LFUCG actually received Ms. Douglas’s August 6 request, this office is unable to determine that LFUCG violated the Act from a procedural standpoint in failing to issue a written response within three business days of receipt per KRS 61.880(1). However, even assuming that LFUCG did receive such a request, on appeal LFUCG correctly argued on appeal that Ms. Douglas would have been denied access per KRS 197.025(2).
The Attorney General has consistently recognized that 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.2 This provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l).3 Because the records at issue do not contain a specific reference to Ms. Douglas, under KRS 197.025(2) she is not entitled to inspect or to receive copies of those records, notwithstanding her underlying concerns. See 03-ORD-073 (regarding application of KRS 197.025(2) generally); 09-ORD-057 (affirming denial by Northpoint Training Center of request for certain policies and procedures on the basis of KRS 197.025(2). Because the record lacks adequate proof concerning the delivery and receipt of Ms. Douglas’s August 6 request for this office to conclusively resolve the related factual dispute, and LFUCG was entitled to deny such a request on the basis of KRS 197.025(2), even assuming that said request was received, this office has no basis upon which to find that LFUCG violated the Open Records Act.
Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Under 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.
Jack Conway
Attorney General
Michelle D. Harrison
Assistant Attorney General
#378
Distributed to:
Levette Douglas, #59303060
Cheryl Henneman
Charles E. Edwards III
[1] Ms. Douglas initially attempted to submit her appeal by letter dated August 11, 2014, but failed to clarify whether she received a response and include a copy per KRS 61.880(2)(a) if so. In response to a letter from this office dated August 21, 2014, she clarified that LFUCG did not provide her with a “cover letter or any other records requested,” but instead sent her books pertaining to “Federal Court rules and procedures per Officer Rodriguez.”
[2] 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.
[3] 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.”