Opinion
Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The Complex properly denied inmate Dwayne Winfield's ("Appellant") February 6, 2020, request for copies of the PREA report he filed on April 15, 2019, in which he alleged sexual abuse by a staff member. Under 28 CFR § 115.61(b), the record requested was confidential. 1Nevertheless, the Complex's response failed to cite the "specific exception" authorizing its denial and failed to give "a brief explanation of how the exception applies to the record withheld," as required by KRS 61.880(1).
Specifically, the Complex's initial response stated:
Appellant initiated this appeal, arguing that he should be able to obtain the report because it related to him.
KRS 61.878(1)(k) creates an exception to the Act for "all public records or information the disclosure of which is prohibited by federal law or regulation." Although the Complex cited "34 U.S.C. 30301 et seq.," there is no provision in the PREA that expressly makes confidential the records that Appellant requested. Rather, in 34 U.S.C. 30306(e)(2)(J), Congress delegated the means for establishing the confidentiality of prison rape complaints to a Commission that was required to create national standards for such confidentiality and report those standards to the United States Attorney General. Under 34 U.S.C. 30306(e)(2)(J), the Department of Justice promulgated 28 CFR 115.61(b), which provides:
When an agency denies access to a requested record, it must "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." KRS 61.880(1) (emphasis added). When an agency relies upon KRS 61.878(1)(k) or (l), the agency must cite the specific federal or state law requiring confidentiality to satisfy this obligation. See
Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). Here, the actual authority for the exemption claimed by the Complex is 28 CFR 115.61(b). But the Complex's response cited only its own policy, 2not 28 CFR 115.61(b). KRS 61.878(1)(k) and (l) incorporate federal law and enactments of the General Assembly requiring confidentiality, not administrative regulations promulgated by state agencies. Therefore, although the Complex properly denied Appellant access to the requested PREA report because it is confidential under federal law, the Complex violated the Act in failing to cite the specific exception authorizing this action.
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 Under 28 CFR 115.73, a person who submitted a complaint is entitled to information regarding whether the complaint was substantiated or unsubstantiated. If substantiated, the victim is also entitled to know additional information about corrective action taken against the perpetrator. The Complex provided the information to which Appellant was entitled.
2 CPP 14.7 is incorporated by reference in 501 KAR 6:020 § 1. In 18-ORD-206, this Office found that this Department of Corrections ("DOC") policy imposed no further restrictions on access to public records than required by 28 CFR 115.61(b). Also in that decision, this Office found that DOC violated the Act when it failed to cite 28 CFR 115.61(b).