Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Jacob Wiseman appeals Northpoint Training Center's denial of his July 28, 2015, open records request, which was stamped as received by NTC on August 4, 2015, for "copies of calibration records for 'Intoxilyzer S-02' portable breathalyzer starting from January 1, 2015, through July 1, 2015." In support of its August 4 denial of Mr. Wiseman's request, NTC cited KRS 197.025(2), advising Mr. Wiseman that because the calibration records did not contain a specific reference to him, per the requirement of that statute, it could not honor his request. On appeal, Mr. Wiseman acknowledged that the records do not specifically reference him, but asserted that they " pertain to [him] specifically by means of the breathalyzer evidence used against [him]," in a disciplinary action. (Emphasis in original.) We affirm NTC's timely denial of his request based on KRS 197.025(2). 1
In an open records decision issued shortly after KRS 197.025 was amended in 2002, 2 the Attorney General wrote:
The language of KRS 197.025(2), [permitting correctional facilities to deny inmate open records requests that did not "pertain" to the requesting inmate] has since been narrowed to require that the records requested by the inmate "contain a specific reference to the [requesting inmate] ." (Emphasis added.) The net effect of this amendment has been to further curtail the inmate's right of access to records maintained by . . . correctional facilities . . . . 03-ORD-007. We find that under no construction of KRS 197.025(2), as amended, can it be said that the requested memorandum "contain[s] a specific reference to [the requesting inmate] ." Accordingly, we find that [the facility] properly denied his request for a copy of the memorandum outlining changes in work programs for inmates diagnosed with Hepatitis, notwithstanding the fact that he has been diagnosed with this illness, because that memorandum does not specifically reference him.
03-ORD-073, p. 3; accord, 15-ORD-025.
The same holds true in this appeal. The clear language of KRS 197.025(2) overrides Mr. Wiseman's belief that the provision is inapplicable to him because the records "pertain" to the disciplinary action he is challenging. His need for the records has no bearing on the resolution of this open records appeal. Under KRS 197.025(2), incorporated into the Open Records Act by KRS 61.878(1)(l), 3 he stands in the same shoes as any other inmate open records requester. NTC properly denied him access to the calibration records because the records did not contain a "specific reference" to him per the statute's requirement.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 KRS 197.025(2) states: 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 As originally enacted, KRS 197.025(2) authorized correctional facilities to deny an inmate request for a record if it did not "pertain to that [inmate]."
3 KRS 61.878(1)(l) authorizes public agencies to withhold "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"