Request By:
Ms. Ruth Ryan
Records Supervisor
Northpoint Training Center
P.O. Box 479
Burgin, Kentucky 40310
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Danny Simmons, an inmate at the Northpoint Training Center, has appealed to the Attorney General's Office pursuant to KRS 61.880 your response to his request to inspect a "conflict sheet" in the possession of the Training Center. He indicates that on July 9, 1991, he requested, and received, a copy of the document, from which certain information had been redacted "for security reasons." The document was immediately retrieved by C.T.O. Gary Davenport, and Mr. Simmons was denied further access.
In a conversation with the undersigned on August 6, 1991, you stated that as a matter of policy "conflict sheets" are not released to inmates unless the requester's name appears at the top of the page, indicating that it was he who reported the "conflict." On this occasion, an error was made in recording the name of the inmate who recorded the conflict, and the document contained allegations of wrongdoing on the part of Mr. Simmons. For this reason, the document was withdrawn and further inspection was denied.
You issued a written denial to Mr. Simmons' request on August 6, 1991, relying on KRS 61.878(1)(j), which incorporates by reference KRS 197.025. Although your response was technically deficient, in that it did not conform to KRS 61.880, we conclude that you properly denied the request and that you acted consistently with the Open Records Act in withdrawing the opinion after it was erroneously released.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Your response to Mr. Simmons' request was deficient, under the Open Records Act, to the extent that you did not reply in writing within three working days. Some twenty work days elapsed between the date of the request and the date of the written response. We urge you to review the relevant provisions to insure that future responses conform to the Open Records Act.
Turning to the issue in this appeal, we find that you properly denied Mr. Simmons' request. KRS 61.878(1)(j) authorizes nondisclosure of:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly.
KRS 197.025, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(j), provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no inmate confined in a jail or any facility under the jurisdiction of the Corrections Cabinet shall have access to any records relating to himself or any other inmate if the disclosure is deemed by the warden and treatment staff to constitute a threat to the security of the inmate, any other inmate, correctional staff, or the institution.
A conflict sheet is prepared when an inmate reports that he has had an altercation with another inmate, or, in this case, that he was the victim of an assault. Clearly, release of such a document would "constitute a threat to the security of the inmate" in that it might lead to retaliation. We believe that you properly denied Mr. Simmons' request on this basis.
Moreover, we are not presuaded that you were estopped from retrieving the document after it was erroneously released. This Office has consistently held that an agency is not estopped from denying inspection of a document released in error, "since estoppel is not effected by inadvertent actions or mistakes but only by previous actions by which the contrary has been admitted, implied or determined." OAG 83-140 at p.2; OAG 90-107; OAG 90-117. As a matter of policy, your facility releases conflict sheets to inmates whose names appear at the top of the page, since there is no potential for violence if the requester is the inmate who reported the conflict. In this case, Mr. Simmons' name was mistakenly placed on top of the page, although it was he who was accused of having assaulted another inmate. It is apparent that the document was erroneously released.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Danny Simmons. He has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).