22-ORD-266
December 13, 2022
In re: Nashawn Tyus/Kentucky State Penitentiary
Summary: The Kentucky State Penitentiary (the “Penitentiary”) did
not violate the Open Records Act (“the Act”) when it denied requests for
records that are prohibited from disclosure under federal law.
Open Records Decision
Inmate Nashawn Tyus (“Appellant”) submitted two requests to the
Penitentiary for records related to a Prison Rape Elimination Act (“PREA”)
investigation. First, he requested “[a] copy of the PREA investigation file that [he]
filed on Aug 2, 2022.” Second, he requested copies of three incident reports related to
the same person. In a timely response, the Penitentiary denied both requests because
the records relate to a PREA complaint and are therefore confidential and exempt
from inspection under KRS 61.878(1)(k), 28 C.F.R. § 115.61(b), 501 KAR 6:020, and
Corrections Policies and Procedures 14.7(11)(J). This appeal followed.
Under applicable federal regulations, “[a]part 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.” 28 C.F.R. § 115.61(b). This regulation is incorporated into the Act under
KRS 61.878(1)(k) which exempts from inspection “[a]ll public records or information
the disclosure of which is prohibited by federal law or regulation or state law.” The
Office has routinely held that records related to PREA investigations are exempt from
inspection under federal law. See, e.g., 21-ORD-255; 19-ORD-111; 18-ORD-206.Here, the Appellant claims he needs access to the requested records because
the records “will clearly show that [his] claim of the PREA” is true and help him
identify witnesses related to his PREA claim.1 Therefore, it is undisputed that the
requested records relate to a PREA investigation. Accordingly, the Penitentiary did
not violate the Act when it denied requests for records that relate to a PREA
complaint and investigation because such records are exempt from inspection under
federal law. 28 C.F.R. § 115.61(b)
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#429
Distributed to:
Nashawn Tyus, 182811
Edward A. Baylous
1
This Office has previously found that an inmate reporting victim in a PREA investigation has no
right to obtain copies of records made confidential by federal law. See, e.g, 21-ORD-255; 18-ORD-206
(finding that records relating to PREA complaints and investigations are confidential except for the
purposes specified in 28 C.F.R. § 115.61(b)).