23-ORD-310
November 20, 2023
In re: Troy Buckler/Southeast State Correctional Complex
Summary: The Southeast State Correctional Complex (“the Complex”)
violated the Open Records Act (“the Act”) when it denied a request to
inspect records without citing an exception and explaining how it
applied to the records withheld. However, the Complex did not violate
the Act by withholding records that are exempt from inspection under
the Prison Rape Elimination Act (“PREA”).
Open Records Decision
Inmate Troy Buckler (“Appellant”) submitted a request to the Complex to
inspect “PREA records” created from June 18, 2021 to January 2022, or at any time
thereafter. In a timely response, the Complex denied the request because “PREA
records are not open records.” The Complex advised the Appellant to “reach out to
[his] PREA compliance manager” at the Complex for any PREA-related concerns or
issues. This appeal followed.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request or deny it and explain
why. KRS 61.880(1). “An agency response denying, in whole or in part, inspection of
any record shall 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.” Id. (emphasis added). Here, the Complex’s initial response did not
cite any exception to the Act or explain how it applied. Rather, it simply stated,
“PREA records are not open records.” As such, the Complex violated the Act because
its response failed to comply with KRS 61.880(1).Although the Complex’s response was deficient, it is correct that the requested
records are exempt from inspection.1 Under 28 C.F.R. § 115.61(b), prison “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.” This exemption is incorporated into
the Act by 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.”
The Appellant asserts that he should have access to the requested PREA
records because they “are [his] own and should not be confidential.”2 However, 28
C.F.R. § 115.61(b) does not include the complainant amongst those entitled to view
the complaint and investigative materials. Rather, under 28 C.F.R. § 115.73(a), “the
agency shall inform the inmate as to whether the allegation has been determined to
be substantiated, unsubstantiated, or unfounded” following “an investigation into an
inmate’s allegation that he or she suffered sexual abuse in an agency facility.” The
Office has previously found that PREA investigation records are confidential and
exempt from inspection, even by the complainant, under KRS 61.878(1)(k) and 28
C.F.R. § 115.61(b). See, e.g., 22-ORD-122; 18-ORD-237; 18-ORD-206. As a result, the
Complex did not violate the Act when it denied the Appellant’s request for PREA
records.
A party aggrieved by this decision may appeal it by initiating an 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.
1
While the Complex maintains its position that PREA records are confidential and exempt from
inspection, it also states on appeal that it does not possess any records responsive to the Appellant’s
request because the Appellant was housed at a different correctional facility on the dates listed in his
request. The Office has previously found that an agency cannot grant a request to inspect records that
it does not possess. See, e.g., 23-ORD-294; 23-ORD-131.
2
The Appellant explains the requested records relate to a “complaint” that “concerns misconduct
and sexual harassment of correctional staff.”Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#475
Distributed to:
Troy Buckler #255143
Amy V. Barker
Sara M. Pittman
Ann Smith