Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Reformatory (KSR) violated the Open Records Act in its disposition of inmate Uriah Pasha's October 20, 2016, request for "[a] copy of Disciplinary Report DR # : KSR-2016-03596, writ[t]en against Uriah Pasha # 092028 for conveying an unknown Inmate confined to a wheelchair from Pill Call to Unit-C's gate and have [ sic ] a 7 minute conversation with said inmate. " We find no violation of the Act.
On October 21, 2016, Offender Information Specialist Kim Campbell replied to Mr. Pasha as follows:
This disciplinary has not been investigated as of this date therefore, in accordance with [KRS] 61.878(h)(i)(j), this document is exempt from inspection and cannot be released to you at this time. You may request this document at a later date.
In his letter of appeal, received November 1, 2016, Mr. Pasha argues that KRS 61.878 does "not exempt disciplinary reports. DR #: KSR-2016-03596 has been sign-off on by the Investigation's Supervisory Review Officer."
In a response dated November 10, 2016, attorney Oran S. McFarlan, III, Justice and Public Safety Cabinet, states the following:
Specifically, KRS 61.878(1)(i) authorizes nondisclosure of "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " KRS 61.878(1)(j) authorizes nondisclosure of "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." It is well settled that disciplinary reports that have not been investigated are preliminary in nature and therefore not subject to disclosure. ? Kentucky courts have recognized that investigative records, compiled as a result of a complaint, are shielded from disclosure by KRS 61.878(1)(i) and (j) as preliminary records unless and until those records are adopted as part of the investigating agency's final action. [Citations omitted.] Here, at the time of the request, the investigation into Mr. Pasha's possible disciplinary action had yet to be completed and thus no decision had been made on whether to charge him with a rule violation. As a result, the document requested was still preliminary and not subject to disclosure.
Moreover, following the investigation, the institution decided to dismiss the disciplinary report. "I just spoke with the Warden. This write up was dismissed therefore it does not exist." See Exhibit A (email from J. Williams dated November 10, 2016). By statute, KSR's warden is required to "expunge inmate prison disciplinary reports that have been dismissed or otherwise ordered void, and shall further remove any reference to dismissed or voided disciplinary reports from inmate records." KRS 196.180(3). This is exactly what happened here, and thus the document requested by Mr. Pasha does not exist.
(Emphasis in original.)
We agree that during the time Mr. Pasha's disciplinary action was still under investigation, it was exempt from disclosure under KRS 61.878(1)(i) and (j). Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001). Thus, KSR's original disposition of the request was proper. Furthermore, the disciplinary action has since been dismissed and thus was subject to mandatory expungement pursuant to KRS 196.180(3). Legally, the disciplinary report no longer exists. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Moreover, KRS 197.025(5) provides: "KRS 61.870 to 61.884 to the contrary notwithstanding, all records containing information expunged pursuant to law shall not be open to the public." Accordingly, we find no violation of the Open Records Act. 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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