19-ORD-226
December 9, 2019
In re: Victor Reyes/Western Kentucky Correctional Complex
Summary:
Western Kentucky Correctional Complex properly
denied inmate request for a copy of specified policies on the basis
of KRS 197.025(2), incorporated into the Open Records Act by
operation of KRS 61.878(1)(l), as the records being sought do not
contain a “specific reference” to him. WKCC did not violate the
Open Records Act in denying his request for a specified form
because it was never created and the agency cannot provide a
nonexistent record for inspection or copying, nor is the agency
required to “prove
a negative” in order to refute
his
unsubstantiated claim that such a form exists.
Open Records Decision
The question presented in this appeal is whether the Western Kentucky
Correctional Complex (“WKCC”) violated the Open Records Act in denying
Victor Reyes’ November 3, 2019, request and his two separate November 4, 2019,
requests. Mr. Reyes first requested a copy of the Corrections Policy and
Procedure (“CPP”) “Cell Entry Log [sic] which [CPP] require[s] for the cells to be
inspect[ed] before an inmate is place[d] in the cell[.]” Next, on November 4, he
asked for a copy of the CPP that governs “destruction of state property” and the
“bed area inspection form for date of 9-19-2019.” WKCC Offender Records
Supervisor Wendy Dupriest denied Mr. Reyes’ November 3 request in a timely
response per KRS 197.025(7), on November 6, because the policy that he sought“is a secured policy. It cannot be released for security reasons pursuant to KRS
61.878(1)[(l) and] 197.025(1) [and] (6).” Likewise, Ms. Dupriest denied his
request for the other CPP (relating to destruction of property) on November 4,
pursuant to KRS 61.878(1)(l) and KRS 197.025(2)(incorrectly cited as KRS
17.150(2)), because it does not contain a specific reference to him. She further
noted that “non-security policies are available for review in inmate library.” She
also denied his request for the inspection form because no such record exists. In
accordance with existing legal authority, this office affirms the agency’s
disposition of each request.1
Upon receiving notification of Mr. Reyes’ appeal, Staff Attorney Julie C.
Foster, Justice and Public Safety Cabinet, responded on behalf of WKCC and
reiterated its position regarding the cited exceptions.2 She also reiterated that
WKCC properly denied his request for the specified “bed area inspection form”
because no such record exists. Relying upon prior decisions by this office, she
argued that WKCC does not have to “prove a negative” in denying access to a
nonexistent record.3
1 KRS 197.025(1) provides: “KRS 61.884 and 61.878 to the contrary notwithstanding, no person
shall have access to any records if the disclosure is deemed by the commissioner of the
department [of corrections] or his designee to constitute a threat to the security of the inmate, any
other inmate, correctional staff, the institution, or any other person.” Likewise, 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.
Both provisions are incorporated into the Open Records Act by operation of KRS 61.878(1)(l),
pursuant to which, “[p]ublic records or information the disclosure of which is prohibited or
restricted or otherwise made confidential by enactment of the General Assembly” are included
among those records removed from application of KRS 61.870 to 61.884.
2 KRS 197.025(6) is also incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
It provides, in part, as follows: “The policies and procedures or administrative regulations of the
department which address the security and control of inmates and penitentiaries shall not be
accessible to the public or inmates.” Discussion of this alternative basis for denial is unwarranted
because KRS 197.025(2) is controlling.
3 In response to a request for clarification, WKCC confirmed that no such inspection form was
ever created so WKCC does not possess a responsive document.In denying Mr. Reyes’ request as to records that lack a specific reference to
him, namely, both of the specified CPPs, WKCC correctly relied upon KRS
197.025(2), incorporated into the Act by operation of KRS 61.878(1)(l), in support
of its position. As amended in 1998, this provision authorized correctional
facilities to withhold a record from an inmate unless the record “pertain[ed] to
that individual.” 98-ORD-150, p. 3. In 2002, however, the General Assembly
further narrowed the scope of public records available to inmates by stipulating
that correctional facilities and jails must disclose only those records containing “a
specific reference” to the requesting inmate. 04-ORD-015, p. 3; 03-ORD-073, p. 3.
“The net effect of [the 2002] amendment has been to further curtail the inmate’s
right of access to records maintained by the [Department of Corrections] and
correctional facilities” under its jurisdiction. 03-ORD-073, p. 3. See also 03-ORD-
007; 04-ORD-015. To this extent, the identity of the requester is directly relevant
and inmates no longer have “the same right to inspect public records as any
other person” as a result of the amendments to KRS 197.025(2), at least with
regard to records in the custody of facilities such as WKCC. 99-ORD-161, p. 3;
04-ORD-076.
The Attorney General has consistently recognized that KRS 197.025(2)
expressly authorizes correctional facilities like WKCC to deny a request by any
inmate unless the record(s) contains a specific reference to that inmate. See 08-
ORD-008; 10-ORD-216. Because any responsive policies do not contain a specific
reference to Mr. Reyes, as required by the language of KRS 197.025(2), he is not
entitled to inspect such records, or to receive copies thereof, notwithstanding any
underlying concerns that he may have. See 99-ORD-161, p. 2; 17-ORD-054. The
instant appeal presents no reason to depart from prior Open Records Decisions
recognizing that DOC and facilities under its jurisdiction, including WKCC, are
not required to produce records to any inmate unless those records contain a
“specific reference” to that individual regardless of the individual’s purpose in
requesting the records. Accordingly, this office affirms the agency’s denial in
this regard.4 99-ORD-161, p. 2; 17-ORD-054 (upholding application of KRS
197.025(2) specifically in relation to CPPs).
4 In construing the expansive language of KRS 197.025(1), the Attorney General has recognized
that KRS 197.025(1) “vests the commissioner [or his designee] with broad, although not
unfettered, discretion to deny inmates access to records.” 96-ORD-179, p. 3; 03-ORD-190.
Application of this provision “is not limited to inmate records, but extends to ‘any records’ the
disclosure of which is deemed to constitute a threat to security.” 96-ORD-204, p. 2 (emphasisLikewise, WKCC did not violate the Act in denying Mr. Reyes’ request for
a nonexistent inspection form. The right of inspection attaches only if the records
in dispute are “prepared, owned, used, in the possession of or retained by a
public agency.” KRS 61.870(2); 02-ORD-120, p. 10. A public agency’s response
violates KRS 61.880(1), “if it fails to advise the requesting party whether the
requested record[s] exist[ ],” but a public agency discharges its duty under the
Open Records Act in affirmatively indicating that no such records exist, or
advising that it lacks possession and explaining why, as WKCC did here, both
initially and on appeal. 13-ORD-052, p. 3. Under the circumstances presented,
our duty under KRS 61.880(2)(a) is not “to conduct an investigation in order to
locate records whose existence or custody is in dispute.” 01-ORD-36, p. 2.
Although the intent of the Open Records Act is statutorily linked to KRS Chapter
171, pertaining to management of public records,5 the Act only regulates public
access to records that currently exist and that are in the possession or custody of
the public agency to which the request is directed. However, a public agency
must explain the nonexistence of the records or its lack of possession if
appropriate. See KRS 61.880(1) and 61.880(2)(c); Eplion v. Burchett, 354 S.W.3d
598, 604 (Ky. App. 2011); 11-ORD-074.
When, as in this case, a public agency denies that any responsive
document exists in the possession or custody of the agency, further inquiry is
unwarranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-
ORD-137; 15-ORD-046. WKCC cannot produce that which it does not have nor is
WKCC required to “prove a negative” in order to refute an unsubstantiated
claim that certain records exist in the possession or custody of the agency in the
absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette
Urban Cty. Gov’t, 172 S.W.3d 333, 340-341 (Ky. 2005); 11-ORD-037; 19-ORD-068.
Either party may appeal this decision may appeal by initiating action in
the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS
added); 03-ORD-190. See 07-ORD-039; 08-ORD-251; 10-ORD-063; 11-ORD-177; 12-ORD-123; 16-
ORD-071; 17-ORD-097; 19-ORD-110. As before, the record on appeal contains no justification to
substitute our judgment for that of the DOC or facilities under its jurisdiction such as WKCC.
Further discussion is unwarranted given that KRS 197.025(2) is controlling on the question of
whether the responsive CPPs are subject to disclosure.
5 See KRS 61.8715.61.880(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.
Andy Beshear
Attorney General
Michelle D. Harrison
Assistant Attorney General
#454
Distributed to:
Victor Reyes, #260894
Wendy Dupriest
Julie C. Foster