Request By:
Glenn Odom, # 219489
Beth Harper
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Glenn Odom initiated this appeal by letter dated February 22, 2017, challenging the denial by Little Sandy Correctional Complex ("LSCC") of his February 15, 2017, request for "a copy of CPP 15.6." In a timely written response Beth Harper, Records Department, responded on behalf of LSCC. Paraphrasing KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(1), and citing prior Open Records Decisions applying KRS 197.025(2), Ms. Harper denied Mr. Odom's request because the requested CPP does not contain a specific reference to him. On appeal Mr. Odom noted that he does have a "pending write up" and is currently "studying to take the legal aide course/training." Accordingly, Mr. Odom asserted that the CPP "positively does relate" to him. Based upon the following, this office affirms the denial by LSCC.
Upon receiving notification of Mr. Odom's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, elaborated upon the position of LSCC. Ms. Barker correctly observed that the legal standard "is not whether a record relates to an inmate" and LSCC correctly invoked KRS 197.025(2) as the basis for denial. Department of Corrections ("DOC") Policies and Procedures ("CPPs"), Ms. Barker continued, "are not the type of record to contain a specific reference to an inmate. " Rather, CPPs "contain operational instructions for the institutions within the Department of Corrections." Ms. Barker cited a line of prior Open Records Decisions establishing that DOC "is not obligated to provide records when they do not contain a specific reference" to the inmate who requests the records. In addition, the Attorney General's Office "has also explicitly held that an inmate is not entitled to obtain policies and procedures since they do not contain a specific reference to individual inmates. " Ms. Barker noted that CPPs "are generally available for inmate review at the institution." Accordingly, Ms. Barker suggested that Mr. Odom "discuss how to review a policy with his Classification and Treatment Officer or library staff at his institution."
Pursuant to KRS 197.025(2):
KRS 61.872 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.) As amended in 1998, this provision authorized correctional facilities to withhold a record from an inmate unless the record "pertain[ed] to that individual." 98-ORD-150, p. 3. In 2002, however, the General Assembly further narrowed the scope of public records available to inmates by stipulating that correctional facilities and jails must disclose only those records containing "a specific reference" to the requesting inmate as LSCC has correctly argued. 04-ORD-015, p. 3; 03-ORD-073, p. 3. "The net effect of [the 2002] amendment has been to further curtail the inmate's right of access to records maintained by the [Department of Corrections] and correctional facilities" under its jurisdiction. 03-ORD-073, p. 3. See also 03-ORD-007; 04-ORD-015. To this extent, the identity of the requester is directly relevant and inmates no longer have "the same right to inspect public records as any other person" as a result of the amendments to KRS 197.025(2), at least with regard to records in the custody of facilities such as LSCC. 99-ORD-161, p. 3; 04-ORD-076.
KRS 197.025(2) is controlling here. The instant appeal presents no reason to depart from prior Open Records Decisions recognizing that DOC and facilities under its jurisdiction, including LSCC, are not required to produce records to any inmate unless those records contain a "specific reference" to that individual regardless of the individual's purpose in requesting the records. See, for example, 09-ORD-006 and 09-ORD-202, both of which reaffirmed this principle specifically in relation to policies and procedures. The denial by LSCC is affirmed.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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.