Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Reformatory ("KSR") violated the Open Records Act in its response to a request for records submitted by inmate Johnny R. Phillips ("Appellant"). For the reasons stated below, we find that KSR violated KRS 61.880(1) by failing to include a statement of the specific exemption authorizing withholding information from kosher meal logs, and a brief explanation of how the exception applies to the information withheld. However, KSR did not violate the Act when it redacted information from the kosher meal sign-in logs that related to other inmates.
On November 26, 2018, Appellant submitted a Request to Inspect/Receive Public Records form with KSR. Appellant submitted the form seeking copies of the "11-21-18 and 11-22-kosher meals sign-in-logs." KSR Offender Information Specialist Cheri Mattingly responded on November 30, 2018 by providing copies of two pages of sign-in logs. The logs contain the names of inmates participating in the kosher meal program. The logs also provide the inmate's dorm number; institutional number; and indicate whether the inmate accepted breakfast, lunch, dinner, and diet snack. The sign-in logs contain two sets of redactions. The first set of redactions consist of white-out marks in areas identifying whether Appellant had accepted meals. The second set of redactions are black strike through marks of information relating to other inmates in the kosher meal program. KSR did not provide Appellant any written explanation for the two sets of redactions.
On December 1, 2018, Appellant wrote to Ms. Mattingly requesting an explanation for the redactions made to the sign-in logs, but he received no response. On December 10, 2018, Appellant appealed the disposition of his request. Appellant argues that the two kosher meal logs contain a specific reference to him, and he is therefore entitled to receive unredacted copies of the records. He also argues that KSR violated the Act by failing to respond to his request for an explanation for the redactions. Appellant also argues that KSR's actions were "criminal in nature" and this matter should be referred to the "Special Investigation Branch of the Attorney General's Office[.]"
Attorney Julie C. Foster of the Justice and Public Safety Cabinet responded to the appeal on behalf of KSR. Ms. Foster provided email messages from Offender Information Specialist Mattingly and KSR Kitchen Supervisor Chad Hart to explain the redactions. Mr. Hart stated that he redacted the areas related to Appellant during meal service as part of the ordinary record keeping process and prior to the open records request. As such, those redactions are not pertinent to this appeal.
The email messages from Ms. Mattingly explained that KSR redacted the information that related to other inmates in the kosher meal program. She indicated that KSR redacted the information because those areas did not contain a specific reference to Appellant. Ms. Foster argued "[p]ursuant to KRS 197.025(2). . . inmates are only entitled to copies of documents containing a specific reference to that individual." She also argued that the redactions were made pursuant to KRS 61.878(1)(a) 1 "because the other inmates have a privacy interest in keeping their information out of [Appellant's] hands, which outweighs the interest of [Appellant]."
KSR violated the Act by failing to explain properly the redactions to the responsive records. KRS 61.880(1) requires that a public agency's denial "in whole or in part, inspection of any record shall 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. " That provision of the Act required KSR to state the specific exception that authorized redacting information from the kosher meal sign-in logs, and explain how the exceptions applied. Since the response was deficient in that respect, we find that KSR committed a procedural violation of the Act.
KSR did not violate the Act when it redacted the information from the kosher meal sign-in logs. However, KSR did not meet its burden of proving that the exceptions it cited authorized withholding information from the responsive records. KRS 197.025(2), incorporated into the Act by operation of KRS 61.878(1)(l) 2, states:
KRS 61.870 to 61.884 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.
Numerous Open Records Decisions of this office affirm a correctional facility's right to deny an inmate's request for records, or portions of records, that do not contain a specific reference to the requesting inmate. See, e.g. , 04-ORD-071; 16-ORD-092. However, the kosher meal sign-in logs contain a specific reference to Appellant. Therefore, standing alone, KRS 197.025(2) does not authorize withholding the information redacted from the kosher meal sign-in logs.
On appeal, KSR argues that it withheld information related to others due to their privacy interests. The institution explained that the redacted information consisted of inmate names, dorm numbers, institutional numbers, and acceptance or refusals of meals. However, KSR did not provide any support for its argument that a protected privacy interest exists. As such, KSR did not meet its burden of proof under KRS 61.880(2)(c) 3 with respect to the redactions it made in reliance on KRS 61.878(1)(a).
However, in 16-ORD-048 we upheld the redaction of information related to other inmates' names and institutional numbers pursuant to KRS 197.025(1). 4 See 16-ORD-048 (copy included). The facts in this appeal are similar to those in 16-ORD-048 and, therefore, KSR did not violate the Act with respect to the redactions made to the names and institutional numbers of inmates on the kosher meal log sign-in sheets. We also recognize that there are legitimate security concerns justifying withholding information related to other inmate's dorm numbers and their participation in the kosher meal program. Accordingly, we find that KSR did not violate the Act when it withheld the information redacted from the kosher meal sign-in sheets pursuant to KRS 197.025(1).
Our office cannot address Appellant's allegation that KRS engaged in criminal conduct in this forum. KRS 61.880(2)(a) 5 provides jurisdiction to review open records appeals and issue a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884. That statute does not provide the authority to conduct investigations into allegations of criminal conduct through an open records appeal process.
Either party aggrieved by 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(a) exempts from disclosure: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]"
2 KRS 61.872(1)(l) exempts from the Open Records Act: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
3 KRS 61.880(2)(c) states in relevant part: "The burden of proof in sustaining the action shall rest with the agency[.]"
4 KRS 197.025(1) states: "KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person."
5 KRS 61.880(2)(a) states: "If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884."