Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Kentucky State Penitentiary ("KSP") properly relied on KRS 61.878(1)(k) and 28 CFR § 115.61(b) in denying inmate James Savage's April 10, 2019, request for records related to a Prison Rape Elimination Act ("PREA") complaint and investigation. For the reasons set forth below, we find no violation of the Open Records Act.
Mr. Savage ("Appellant") requested "one copy of everything there is pertaining to the [Prison Rape Elimination Act complaint] I James Savage filed on April 4, 2019. This is to include any and all writing [sic] reports and all interviews that's [sic] on tape and a copy of the incident showing me at the urinal on March 6, 2019." KSP received the request on April 12, and on April 19 KSP sent a timely response 1 stating that it needed until April 26 to respond "due to the recent overwhelming increase in open record requests and the availability of staff to research and assist in obtaining the records requested." 2 KSP sent its final response to Appellant on April 25, providing a copy of the final decision regarding the complaint, but denying all other responsive records pursuant to 28 CFR § 115.61(b), KRS 61.878(1)(k) and Corrections Policies and Procedures 14.7(J). On appeal, Appellant states that KRS 61.884 requires that he be given "access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification." 3
In 18-ORD-206, we upheld the position of the Department of Corrections that information pertaining to complaints and investigations under the Prison Rape Elimination Act ("PREA") is confidential pursuant to 28 CFR § 115.61(b), as incorporated into the Open Records Act by KRS 61.878(1)(k). 4 5 We attach a copy of that decision and adopt its reasoning. The federal regulation prohibits disclosure of such information except "to the extent necessary, as specified in agency policy, to make treatment, investigation, and other security and management decisions." The Department's policy, codified in Corrections Policies and Procedures ("CPP") 14.7(J), is that "[a]ll 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." 6
Because the records in question are undisputedly "related to a sexual abuse report" within the meaning of 28 CFR § 115.61(b), they may not be disclosed except as provided in that federal regulation and in CPP 14.7(J).
As to Appellant's argument that he is entitled to the records pursuant to KRS 61.884, we note that Appellant failed to mention the final phrase in that statute, which states that access to records relating to a requester or mentioning him by name are "subject to the provisions of KRS 61.878." KRS 61.878(1)(k) incorporates into the Open Records Act the federal regulation denying Appellant access to the requested records, is one of the exceptions that KRS 61.884 references. Appellant's argument is defeated by the final words of the very statute he argues gives him access to the requested records. Accordingly, we find no 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 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 197.025(7) allows a correctional facility up to five business days, after receipt, to respond to a request for records:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
2 Pursuant to KRS 61.872(5):
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
3 In its entirety, KRS 61.884 states: "Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878." (Emphasis added.)
4 28 CFR § 115.61(b) states: "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."
5 KRS 61.878(1)(k) prohibits from disclosure "All public records or information the disclosure of which is prohibited by federal law or regulation[.]"
6 CPP 14.7(J), "Confidentiality," 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.