Request By:
Ms. Betty Stuart
Offender Records Specialist
Kentucky State Penitentiary
Eddyville, Kentucky 42038-0128
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Richard Williams, an inmate at the Kentucky State Penitentiary, has appealed to the Attorney General, pursuant to KRS 61.880, your response to his January 2, 1992, request to inspect "a copy of, or transcription of, the taped interview conducted on 12-31-91 between Lt. Tom Pryor, Internal Affairs, and [Mr. Williams]." He explains that in this taped conversation, he and Lt. Pryor discussed the reasons for his removal to administrative segregation.
Upon receipt of Mr. Williams' request, you returned it to him, advising him that he should direct it to the officer who made the tape for disposition. In a conversation with the undersigned on February 4, 1992, you stated that this is standard practice at KSP, since the tapes are not housed in the Records Office, but remain in the hands of the individuals who make them. Mr. Williams' request was returned to him on January 7, 1992, and subsequently forwarded to Lt. Pryor and Barry Bannister, Procedures Officer at KSP. It was again returned to him with an undated note attached, the full text of which reads: "The Procedures Officer reviewed the taped interview and concluded that you are not entitled to a copy. Lt. Pryor." The dispositional portion of the request form remained blank.
Mr. Williams asks that we review Lt. Pryor's response to his request to determine if these actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that although Lt. Pryor failed to invoke the proper exception to disclosure, he properly denied Mr. Williams' request.
OPINION OF THE ATTORNEY GENERAL
KRS 61.870(2) defines a "public record" as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
This all encompassing definition clearly embraces a taped interview between an inmate and a prison officer. Accordingly, KSP should have complied with the guidelines for agency response to open records requests set forth at KRS 61.880(1) in response to Mr. Williams' request. 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 must be forwarded by the agency to the Attorney General's Office.
KSP's response to Mr. Williams' request was legally insufficient insofar as it was not issued within three working days. Nor did it include a statement of the specific exception authorizing nondisclosure or briefly explain how the exception applies to the records withheld. Moreover, it was not issued by the official custodian or under her authority, and no copy was forwarded to the Attorney General's Office. Future responses to open records request must conform to these provisions. To insure that a proper response is issued, we advise that all open records requests be reviewed by the custodian pursuant to KRS 61.880(1).
In a conversation with the undersigned on February 18, 1992, Ms. Susan Alley, staff attorney for the Corrections Cabinet, stated that as a follow up to an earlier conversation, she contacted KSP and learned that the incident out of which this records dispute arose was, at the time of that conversation, the subject of an ongoing investigation. She expressed the belief that the tape was properly withheld pursuant to KRS 61.878(1)(f), which exempts from mandatory disclosure:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
Mr. Williams was interviewed by Lt. Pryor following an incident involving a fellow inmate in which Mr. Williams was believed to have participated. This incident was investigated by KSP, and the records generated in the course of the investigation were therefore properly withheld until enforcement action was completed or a decision was made to take no action. OAG 83-366; OAG 85-93; OAG 86-59; OAG 86-81; OAG 91-50. We have been advised by Lt. Pryor that since this appeal was filed, the investigation into the incident involving Mr. Williams has been concluded. At the close of the investigation, Lt. Pryor advised Mr. Williams that he could obtain a copy of the tape by submitting a signed C.P.O. form, but he has not received such a request to date. Nevertheless, Mr. Williams is certainly free to resubmit his request.
We urge the Offender Records Administrator and Deputy Warden at KSP to review existing policy relative to this problem. If a request is made for a document which is not housed in the Records Office, those records should be retrieved and reviewed by the records specialist for a determination of the propriety of release. At a minimum, the custodian should review any denial of an open records request to insure that it conforms to the referenced provisions. While we are not unmindful of the enormous volume of requests received by your office, we believe that it is imprudent to entrust such a weighty responsibility to individuals who may have little or no knowledge of the Open Records Act.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Richard Williams. Both Mr. Williams and the Kentucky State Penitentiary may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).