Opinion
Opinion By: Andy BeshearAttorney General;Sarah Ellen Eads AdkinsAssistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections ("DOC") violated the Open Records Act in denying Uriah Pasha's ("Appellant's") October 30, 2018, request for a copy of the "PREA [(Prison Rape Elimination Act) ] Administrator's correspondence to [Northpoint Training Center] PREA Coordinator Jessica Payton." For the reasons that follow, we conclude that DOC's denial did not substantively violate the Open Records Act.
Appellant initiated this appeal on November 13, 2018, while waiting on DOC's response. On November 20, 2018, DOC responded to Appellant's October 30, 2018, request, stating that the records were "PREA investigation documents" and therefore would not be provided "due to the confidential nature of the investigation and security and privacy concerns associated with released documentation given the subject matter of the investigation." 1 DOC invoked KRS 61.878(1)(a), 61.878(1)(l), and 197.025(1), as well as "[t]he confidentiality standards contained in the Prison Rape Elimination Act, 34 U.S.C. 30301 et seq. and CPP 14.7, in tandem with KRS 197.025(1) and (2)." On November 26, 2018, DOC provided a similar response to the current appeal, citing mostly the same statutes and regulations, but adding the applicable federal regulation, 28 CFR 115.61(b).
As a preliminary matter, KRS 197.025(7) requires DOC to respond within "within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays." In its response to the appeal, DOC admitted that the response was not issued within five business days after receipt, but attached the response to its appeal
The late response constitutes a procedural violation by DOC. We remind DOC that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Although DOC acknowledges that its response was late, we urge DOC to review the cited provision to insure that future responses conform to the Open Records Act.
On appeal, DOC relies chiefly on KRS 61.878(1)(k), which excludes from the Open Records Act "all public records or information the disclosure of which is prohibited by federal law or regulation. " A public agency denying access to public records under KRS 61.878 must not only cite the specific exception on which it relies under KRS 61.878(1), but also give "a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). Accordingly, where the denial is based on KRS 61.878(1)(k), the response must "cite the applicable . . . federal law. " Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996) (quoting 94-ORD-154). DOC's response, which contained only a general citation to PREA, was insufficient because it did not include a citation to 28 CFR 115.61(b), the specific legal authority on which CPP 14.7(J) was based. Therefore, we find that DOC committed a procedural violation of KRS 61.880(1). However, DOC cured this violation on appeal.
In its response to this appeal, DOC cited the pertinent federal regulation, 28 CFR 115.61(b), which provides:
Apart from reporting to designated supervisors or officials, staff shall not reveal any information related to a sexual abuse report to anyone other than to the extent necessary, as specified in agency policy, to make treatment, investigation, and other security and management decisions.
Implementing this regulation, DOC adopted CPP 14.7(J), which provides:
All information in a report or investigation of a sexual offense shall be kept confidential except to the extent necessary to report to an appropriate supervisor, adequately investigate, provide treatment, or make security or management decisions. An individual interviewed in the course of resolving the complaint shall be cautioned to treat the information as confidential. Breach of this confidentiality shall be grounds for disciplinary action.
Two limited exceptions to PREA confidentiality exist that do not apply here. 28 CFR 115.89(b) requires an agency to "make all aggregated sexual abuse data . . . readily available to the public at least annually through its Web site or, if it does not have one, through other means." In addition, 28 CFR 115.73 requires an agency to inform the complaining inmate "as to whether the allegation has been determined to be substantiated, unsubstantiated, or unfounded," along with other pertinent information about the alleged abuser.
Although we find that DOC's initial response was procedurally deficient by being untimely and by failing to cite the applicable federal regulation in their response, we affirm DOC's subsequent and substantive response denying Appellant's request for PREA records.
"[T]his office will generally defer to the public agency in its interpretation of confidentiality provisions which are binding upon it." 05-ORD-186 (citing 98-ORD-78). See also 13-ORD-127. We note that CPP 14.7(J) creates no further restrictions on access to public records than required by the federal regulation. See 18-ORD-206. We also conclude that DOC's denial of a record related to a PREA investigation was consistent with those restrictions. Therefore, DOC is entitled to claim the confidentiality exemption for PREA records under KRS 61.878(1)(k).
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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