Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in denying Chris Hawkins's April 22, 2019, request for copies of various documents related to a PREA investigation, including audio records reports, and of statements from other inmates interviewed during the course of the investigation. For the reasons that follow, we conclude that KSP's denial did not substantively violate the Open Records Act.
On April 29, 2019, KSP timely responded 1 to Appellant's April 22, 2019, request, stating that the records were "PREA complaints and investigations" and, therefore, "confidential and exempt from disclosure pursuant to 28 CFR 115.61(6), KRS 61.878(1)(k), and [Department of Corrections Policies and Procedures ("CPP"] 14.7(J)." Appellant appealed this denial in an undated letter received by this office on May 9, 2019. On May 14, 2019, KSP provided a similar response to the current appeal.
KRS 61.878(1)(k) exempts from disclosure "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " KSP properly cited the pertinent federal regulation that exempts the requested records, 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, KSP adopted CPP 14.7(J), which states:
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 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.
"[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. Accordingly, we affirm KSP's response denying Appellant's request for PREA records. Notably, 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 KSP's denial of a record related to a PREA investigation was consistent with those restrictions. Therefore, KSP 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.
Footnotes
Footnotes
1 KRS 197.025(7) requires DOC to respond within "within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays."