Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory (KSR) violated the Open Records Act in the disposition of inmate Robert McKinney's request dated July 12, 2017, and received July 14, 2017, for "emails to and from the grievance coordinator between the dates of 6/13/17 concerning the matter of grievances only with the name Robert McKinney 201470 on it." For the reasons stated below, we find no substantive violation of the Act.
On July 21, 2017, Offender Information Specialist Kim Campbell responded to Mr. McKinney's request, stating: "Currently the emails you are requesting are part of an open and active outside investigation. I am unable to release information from an active investigation." Mr. McKinney's appeal was received in this office on July 27, 2017.
KRS 61.880(1) requires that a public agency's denial of an open records request "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." Since this response was deficient in that respect, we find that KSR committed a procedural violation of the Act.
Substantively, KSR responded to this appeal on August 18, 2017, advising that the facility had offered to produce the responsive e-mails "with redactions for opinions, recommendations, and other information that are preliminary in nature since they have not been adopted as part of final agency action. KRS 61.878(1)(i) & (j)." As to the records so offered to Mr. McKinney, except to the extent of the redactions, this appeal is moot. 04-ORD-046; 03-ORD-087; OAG 91-140.
KSR has not offered to provide copies of Mr. McKinney's actual grievances, which were an attachment to one of the e-mails, since they were given to him under a prior open records request. This office has generally upheld the denial of a duplicate request for records. In 95-ORD-47, for example, we stated that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." Consequently, in 04-ORD-018, we found that a prisoner who had inspected his inmate file once was not entitled to view it again unless he could "explain the necessity of reproducing the same records which either already have been provided or have been inspected by him, such as loss or destruction of the records." Accordingly, we uphold the denial of the request insofar as it includes the grievances already provided to Mr. McKinney.
We turn, therefore, to the redactions made pursuant to KRS 61.878(1)(i) and (j). Those provisions permit the withholding of, respectively:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; [and]
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action."
E-mails containing strategies, opinions, or recommendations that have not been adopted as the basis of final agency action fall within the coverage of KRS 61.878(1)(j). KSR explains the redactions in its August 18 response as follows:
The information provided by the inmate to the grievance coordinator contained allegations that if true would be criminal in nature and the allegations were turned over to the Louisville Metro Police Department (LMPD) for criminal investigation. The allegations also caused the opening of a PREA [Prison Rape Elimination Act] investigation within the DOC. The PREA investigation has not been finalized pending the LMPD investigation. The preliminary character of the redacted items continues since the police investigation has not been completed and a decision has not been reached for any final agency action based on the PREA investigation. It is not harm to an investigation that is at issue, but that the recommendations and opinions redacted remain preliminary since they have not been adopted as part of any final agency action. One redaction was made since it referenced possible negotiations that are preliminary and no final agreement from any negotiations has been made. They are unrelated to the investigations or the inmate's allegations.
On August 24, 2017, KSR clarified its response with the following:
The essential explanation for the redactions is that they may always be preliminary ? because they may not be adopted as part of final agency action given their nature and information currently known. The opinion statements generally are only tangentially connected to the original allegations that are now the subject of both ongoing PREA and LMPD investigations. The ongoing investigations have slowed final action by the DOC, but the results of the investigations are likely to have no impact on the preliminary nature of the redactions.
Subsequent to this communication, counsel for KSR was made aware of additional responsive e-mails that were found after a further search. On September 7, 2017, the facility advised:
Additional redactions have been made in the emails not previously provided that reference potential contract negotiations. These are preliminary and no final agreement from any negotiations has been made. The outcome of the investigations generally at issue in the emails have no bearing on the preliminary nature of this redaction.
Additional redactions have been made for expressions of employee opinions that are at least topically connected to the investigations at issue in the emails. The opinions are based on speculation, assumptions, and in some cases incorrect information and are not adopted as part of any final agency action. They may always be preliminary ? because they may not be adopted as part of final agency action given their nature and information currently known. The opinion statements generally are only tangentially connected to the original allegations that are now the subject of both ongoing [PREA] and LMPD investigations. The allegations in the investigations did not arise from action at KSR and address allegations of actions at other locations? One redaction concerns recommendations of the PREA coordinator and remain preliminary because the action involved was not put into effect. The recommendations were not adopted and remain preliminary.
Pursuant to KRS 61.880(2)(c), this office has conducted an in camera review of the redacted material. While we cannot reveal details of the content of the records, we find KSR's description and characterization of the redactions to be accurate and conclude that they all consist of opinions, recommendations, or formulations of public policy not adopted as the basis of final agency action.
"Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j)? If not adopted, they will retain their preliminary character." 01-ORD-47. Accordingly, KSR has properly invoked KRS 61.878(1)(j), and we therefore find no substantive violation of the Open Records Act.
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.