Request By:
Uriah M. Pasha, # 092028
Amanda Carter
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Uriah M. Pasha initiated this appeal by letter dated July 31, 2017, challenging the denial by Eastern Kentucky Correctional Complex ("EKCC") of his July 20, 2017, request for a "copy of the Special Medical Order Diet Menu for Uriah Pasha # 092028 High Protien [sic] Low Carbohydrate Diet. This request is for the Menu that the [Kentucky Department of Corrections] Dietician published, printed and posted for the Food Service Dept. to follow." Citing KRS 61.878(1)(l) and KRS 197.025(2), the agency denied the request as the menu does not contain a specific reference to Mr. Pasha.
Upon receiving notification of this appeal, the agency elaborated upon its position as follows:
A menu is not the type of record in which a reference is made to a specific inmate. "KRS 197.025(2) expressly authorizes correctional facilities like [EKCC] to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. " 08-ORD-271, p. 3. This statute in conjunction with KRS 61.878(1)(l) clearly shows that the [DOC] is not obligated to provide records when they do not contain a specific reference to the inmate who requests the record. [Citations omitted.]
Based upon the following, this office affirms the agency's denial of the request.
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 EKCC 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 [DOC] and correctional facilities" under its jurisdiction. 03-ORD-073, p. 3; see 03-ORD-007; 04-ORD-015; 12-ORD-064. 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 EKCC. 99-ORD-161, p. 3; 04-ORD-076; 13-ORD-013.
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 EKCC, 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, 08-ORD-008 and 12-ORD-064, both of which reaffirmed this principle specifically in relation to menus. Because the record(s) at issue do not contain a specific reference to Mr. Pasha, as required under KRS 197.025(2), he is not entitled to inspect such records, or to receive copies thereof, notwithstanding his underlying concerns. Regardless of the hardship Mr. Pasha may believe that application of KRS 197.025(2) imposes, he is expressly precluded from gaining access to records which do not contain a specific reference to him by the mandatory language of this provision; accordingly, EKCC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying his request. 99-ORD-161, p. 2; see 07-ORD-219; 10-ORD-228.
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 must not be named as a party in that action or in any subsequent proceeding.