Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented on appeal is whether Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act when it denied Robert Taylor's open records request. For the reasons that follow, we conclude that EKCC violated the Open Records Act by failing to comply with KRS 197.025(2).
Appellant is an inmate at EKCC. On March 7, 2019, Appellant submitted a request for records to EKCC on its Request to Inspect Public Records form, which contains his name and inmate ID number unique to him. He requested the following: "A copy of all pictures [sic] attachments sent to me thourgh [sic] J-Pay from September 1, 2018 [sic] to present, up to and not to exceed 300 images." On March 12, 2019, EKCC denied Appellant's request and claimed the records were exempt according to KRS 61.878(1)(p), arguing that the J-Pay photos were "of a purely personal nature unrelated to any governmental function." On March 13, 2019, Appellant submitted his appeal, which this office received on March 15, 2019. On March 26, 2019, the Justice and Public Safety Cabinet responded on behalf of EKCC, and reiterated EKCC's initial response that the records were exempt from disclosure under KRS 6.878(1)(p) because Appellant "has not alleged that the photos are in any manner related to a 'government function.'" The record shows that EKCC has not asserted the "pictures" Appellant requested are not of Appellant himself.
KRS 197.025 is titled "Restrictions on access to inmate and facility records -- Appeal Procedure -- Restrictions on access to policies and procedure." KRS 197.025(2) provides:
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.
(Emphasis added). The Sixth Circuit Court of Appeals has defined "notwithstanding" as "without prevention or obstruction from or by" or "in spite of."
Deutsche Bank Nat'l Trust Co. v. Tucker, 621 F.3d 460, 464 (6th Cir. 2010) (citing In re Thompson, 372 B.R. at 863). The United States Supreme Court has stated that the ordinary meaning of "notwithstanding" is "in spite of," or "without prevention or obstruction from or by."
N.L.R.B. v. SW General, Inc., 137 S. Ct. 929, 939 (2017) (citing Webster's Third New Int'l Dictionary 1545 (1986); Black's Law Dictionary 1091 (7th ed. 1999) ("Despite; in spite of"). Using these definitions, we read KRS 197.025(2) to mean that, "in spite of" the exemptions listed in KRS 81.878, the Department of Corrections and its facilities can withhold records from inmates unless the requested records "contain a specific reference to" the requesting inmate. Based on its express language, KRS 197.025(2) supersedes any provision in KRS 61.870 to 61.844, including KRS 61.878(1)(p), that is contrary to KRS 197.025(2).
We find that the records Appellant requested are not exempt under the Open Records Act because KRS 197.025(2) allows an inmate access to records which contain a specific reference to the inmate. Appellant's request contained his name and inmate ID number, and he requested records from his own J-Pay account -- "pictures" that neither party claims are not of Appellant himself. Thus, Appellant requested records which contain a specific reference to himself. EKCC was therefore required to provide the requested records under KRS 197.025(2).
Accordingly, we find that EKCC violated the Open Records Act by denying Appellant's request for records that contained a specific reference to Appellant: "pictures" from his own J-Pay account. EKCC should immediately respond to Appellant's request or otherwise make the records available for his inspection.
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 proceeding.