22-ORD-241
November 7, 2022
In re: Marcus Little/Christian County Jail
Summary: The Christian County Jail (“the Jail”) violated the Open
Records Act (“the Act”) when it denied, under KRS 61.872(3)(b), a
request that precisely described the records sought. The Jail also
violated the Act when it denied entirely a request for its policies and
procedures under KRS 197.025(1) instead of separating exempt
information from nonexempt information and providing the latter as
required under KRS 61.878(4).
Open Records Decision
On September 23, 2022, attorney Marcus Little (“Appellant”) requested copies
of the “Jail’s Policies and Procedures as of July 1, 2022.” The Jail denied the request
on the grounds that it did not “precisely describe” the requested records under KRS
61.872(3)(b). The Jail also cited KRS 197.025 and KRS 61.878(1)(k), claiming
disclosure of the records “could . . . compromise the safety and security of the jail, its
staff, and inmates, by, for example, revealing tactics which a future inmate could use
to thwart necessary use of force by staff.”1 This appeal followed.
Under KRS 61.872(3)(b), a person may receive copies of public records by mail
“after he or she precisely describes the public records which are readily available
within the public agency.” This Office has found that a description is precise under
KRS 61.872(3)(b) “if it describes the records in definite, specific, and unequivocal
terms.” See 98-ORD-17. There is nothing imprecise about the Appellant’s description
of the records he requested. The Appellant asked for all the Jail’s policies and
procedures in effect on July 1, 2022. Cf. 22-ORD-213 (finding that a request for all
1
The Jail subsequently provided the Appellant a redacted version of one policy, identified as VI-
300. The specific redactions are not at issue in this appeal. However, the Appellant requested all the
Jail’s policies, not just one. Therefore, this appeal is not moot under 40 KAR 1:030 § 6.records of a particular type “does not make the request unclear,” but instead, might
make a request unreasonably burdensome if the agency provides clear and convincing
evidence). Thus, the Jail improperly denied the Appellant’s request under KRS
61.872(3)(b).
Under KRS 197.025(1), “no person shall have access to any records if the
disclosure is deemed by the commissioner of the department or his designee to
constitute a threat to the security of the inmate, any other inmate, correctional staff,
the institution, or any other person.” The exemption under KRS 197.025(1) is
incorporated into the Act under KRS 61.878(1)(l), which incorporates any enactment
of the General Assembly that exempts public records from inspection. This Office has
historically deferred to the judgment of correctional facilities in determining whether
the release of certain records would constitute a security threat under
KRS 197.025(1).
Under the Act, however, “[i]f any public record contains material which is not
excepted under this section, the public agency shall separate the excepted and make
the nonexcepted material available for examination.” KRS 61.878(4). Thus, the Jail
is required to redact the specific material in its policy and procedure manual, the
disclosure of which would constitute a security threat under KRS 197.025(1), and
provide the remainder to the Appellant. See, e.g., 21-ORD-182. The burden of
identifying the material subject to redaction rests with the Jail. See, e.g., 18-ORD-
043. Because the Jail withheld the policy and procedure manual in its entirety,
instead of separating exempt information from nonexempt information and providing
the latter, it violated the 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 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#392Distributed to:
Marcus R. Little, Esq.
Lincoln W. Foster, Esq.
John T. Soyars, Esq.