24-ORD-006
January 16, 2024
In re: Reginald Grider/Kentucky State Penitentiary
Summary: The Kentucky State Penitentiary (“Penitentiary”) subverted
the intent of the Open Records Act (“the Act”), within the meaning of
KRS 61.880(4), by delaying its final response beyond the five-day period
under KRS 61.880(1) without invoking KRS 61.872(5), explaining the
cause for delay, or providing the earliest date when the records would
be available. The Penitentiary did not violate the Act when it denied a
request for photos of evidence that would pose a security threat to the
Penitentiary if released. KRS 197.025(1).
Open Records Decision
On October 30, 2023, inmate Reginald Grider (“Appellant”) submitted a
request to the Penitentiary seeking audio recordings of adjustment hearing
proceedings conducted in connection with two specific disciplinary reports, the first
part of both disciplinary reports, and color photographs of the evidence attached to
the reports. On December 1, 2023, the Penitentiary denied the Appellant’s request
for audio recordings because the equipment on which the audio is saved was
malfunctioning and directed the Appellant to “resubmit [his] request in a few weeks.”
The Penitentiary also denied the Appellant’s request for color photos of evidence
under KRS 197.025(1) and KRS 61.878(1)(l) because those photos constitute a
security risk. The Penitentiary granted the Appellant’s request for the first part of
the two disciplinary reports. This appeal followed.
Under KRS 61.880(1), a public agency must decide within five business days
whether to grant a request or deny it. This time may be extended under
KRS 61.872(5) when records are “in active use, in storage or not otherwise available,”
if the agency gives “a detailed explanation of the cause . . . for further delay and the
place, time, and earliest date on which the public record will be available for
inspection.” An agency may not impose a lengthy delay under KRS 61.872(5) withoutexplaining why the delay is necessary. See, e.g., 21-ORD-045. The burden of proof
rests with the public agency to sustain its actions. KRS 61.880(2)(c).
Here, the Appellant’s request was dated October 30, 2023, and a note on the
request indicates it was received by the Penitentiary’s open records office on
November 1, 2023. However, the Penitentiary’s response was dated December 1,
2023. On appeal, the Penitentiary claims the request was dated November 9, 2023,
and was received by the Penitentiary on November 13, 2023. The Penitentiary states
it “notif[ied] [the Appellant] that additional time was needed [and] a timely response
was sent to [the Appellant] on December 1, 2023.”
Under KRS 61.880(4), a person who “feels the intent of [the Act] is being
subverted by an agency short of denial of inspection, including but not limited to . . .
delay past the five (5) day period described in” KRS 61.880(1), may appeal to this
Office as if the request had been denied. Here, while it is unclear when the
Penitentiary received the request, the Penitentiary admits that it did not determine
whether to grant or deny the request until December 1, 2023. Accordingly, the
Penitentiary has not carried its burden of proving that it issued a timely response in
compliance with the Act.1
When the Penitentiary responded to the request on December 1, 2023, it
informed the Appellant that, because its audio recorder was being repaired, he would
need to resubmit his request “in a few weeks.” Although the Penitentiary informed
the Appellant that the records were currently unavailable, it failed to invoke
KRS 61.872(5) or provide the earliest date by which the records would be available.
Accordingly, the Penitentiary violated the Act.
Finally, the Penitentiary denied the Appellant’s request for “color photos of
evidence” as exempt under KRS 197.025(1) because disclosure of those records would
1
The Penitentiary only asserts that it notified the Appellant “that additional time was needed.” It
has not provided the Office with a copy of this correspondence, and thus, there is no proof in this record
that the Penitentiary issued any response to this request until December 1, 2023. The Appellant also
claims the Penitentiary routinely delays access to records he requests, and he provides as an example
a memorandum from the Penitentiary relating to two other requests he submitted on November 9,
2023, in which the Penitentiary claimed it needed additional time because of “a family emergency that
came up and the Thanksgiving holiday break.” Whether the Penitentiary properly invoked
KRS 61.872(5) in response to the Appellant’s two requests submitted on November 9, 2023, is not
properly before the Office because the Appellant has not provided copies of those requests. Simply put,
the request at issue here was dated October 30, 2023, was noted as having been received on November
1, 2023, yet the Penitentiary provides no proof it issued a response before December 1, 2023, almost a
month later.constitute a security threat. Under KRS 197.025(1), “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 . . .
correctional staff [or] the institution.” KRS 197.025(1) is incorporated into the Act
under KRS 61.878(1)(l), which exempts from inspection public records the disclosure
of which is prohibited by enactment of the General Assembly. Specifically, the
Penitentiary states that it does not provide photographs of weapons because “they
could be used as templates to make more weapons like them.”
This Office historically has deferred to the judgment of a correctional facility
in determining whether the release of certain records would constitute a security
threat. In particular, this Office has previously upheld the denial of photographs of
weapons under KRS 197.025(1). See, e.g., 17-ORD-229 (affirming the denial of copies
of a photograph of knife used in a stabbing would be a security risk because it could
potentially be shared with other inmates). Accordingly, the Penitentiary did not
violate the Act when it withheld “color photos of evidence” that, if released, would
pose a security risk under KRS 197.025(1).
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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#550
Distributed to:
Reginald Grider #253921
Amy V. Barker
Sara M. Pittman
Ann Smith