Request By:
William Belew, # 126254
Belinda Staples
Amy V. Barker, Esq.
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Green River Correctional Complex violated the Kentucky Open Records Act in its disposition of a request by inmate William Belew for case notes from his inmate file. For the reasons stated below, we find that the agency's ultimate disposition of the request complied with the Act, except for one redaction regarding "credit."
On June 29, 2017, inmate William Belew submitted an open records request to Green River Correctional Complex (GRCC) for "a complete copy of my 'inmate case notes' from KOMS. " 1 Belinda Staples, Offender Information Specialist, GRCC, answered his request on July 5, 2017. GRCC provided case notes that were redacted pursuant to KRS 61.878(1)(j), and a "Statement of Deficiencies" was withheld pursuant to KRS 61.878(1)(i) and (j). Mr. Belew then appealed GRCC's response, arguing that the case notes were improperly redacted.
Amy Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of GRCC. Ms. Barker argued that:
Inmate Belew's letter of appeal is dated July 25, 2017. His appeal was filed with the Attorney General after the twenty-day, statutory time frame set forth in KRS 197.025 governing inmate open records appeals elapsed. KRS 197.025(3) states: "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." (Emphasis added.) Pursuant to KRS 197.025(3), the twenty day time frame ended on the date he wrote his letter of appeal. Since he did not file his appeal with the Attorney General until after July 25, he is barred from the open records appeal process
This argument would be dispositive but for the lack of evidence that Mr. Belew did not send his appeal on July 25, 2017. Pursuant to KRS 61.880(2)(c), "the burden of proof in sustaining the action shall rest with the agency[.]" Without further proof that Mr. Belew mailed or otherwise sent his appeal after July 25th, we cannot determine that the appeal is time-barred.
The agency's response also states that, after receipt of the appeal, more experienced GRCC staff reviewed the case notes that were redacted. It was determined that a number of the notes later became final. These notes were provided to Mr. Belew with a copy of the agency's response. The institution decided to waive the preliminary aspect to several of the notes given their content, rather than arguing in support of their preliminary nature on appeal.
The agency stated that two case notes remain redacted, explaining that they are preliminary in nature because they contain recommendations for actions that were not adopted as part of final agency action. "For one note, the redaction contains information that is preliminary and has not been adopted as part of final agency action since the transfer recommendation did not become a completed transfer." In 15-ORD-103, we observed that the Attorney General has affirmed past denials of inmate requests for unapproved transfer authorization forms, and related notes, on the basis of KRS 61.878(1)(i) and (j). 2 In 15-ORD-092, this office found no violation of the Open Records Act by a correctional facility that relied on KRS 61.878(1)(j) to deny access to transfer authorization forms containing recommendations for transfer that were rejected by DOC's Central Office. Based on 09-ORD-088, we characterized the content of these forms as "preliminary recommendations. " Because they were "not implemented," they were "not adopted as the basis of final action" and retained their preliminary character. Accord, 12-ORD-218. We find no violation of the Act in GRCC's withholding the notes relating to a transfer recommendation that did not become adopted by a completed transfer.
The agency response regarding the final redaction explains that it is a case note "involving credit that was not adopted as part of a final agency action" and argues that "a recommendation retains its preliminary character if is not followed and adopted as part of the final agency action. " The agency failed to give sufficient explanation of the type of "credit" that was the subject of this redaction or why it was not adopted. As mentioned above, the burden of proof is on the agency in sustaining its action and, without more information and explanation regarding this redaction, we are unable to determine that the agency was justified in making this redaction. We conclude that this redaction constitutes a violation of the Act and GRCC must provide the unredacted case note involving "credit."
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.
Footnotes
Footnotes
1 KOMS is the acronym for "Kentucky Offender Management System," the electronic record-keeping system for inmate records.
2 KRS 61.878(1)(i) and (j) allow an agency to withhold:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]