Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Bullitt County Jail's denial of David Houston's request to inspect certain records in its custody. On May 22, 1995, Mr. Houston, a prisoner temporarily confined in the Bullitt County Jail, requested access to:
1) The Bullitt County Jail's written operations or policy and procedure manual;
2) Any "rules" prescribed by Bullitt County Fiscal Court under KRS 441.045(1) "for the government and cleanliness of the [Bullitt] county jail and the comfort and treatment of prisoners...."
In addition, Mr. Houston requested access to "all jail records/files pertaining to [him] and maintained pursuant to 501 KAR 3:020, Section 5."
On behalf of the Bullitt County Jail, Ralph Bleemel, Bullitt County Jailer, denied Mr. Houston's request on May 26, 1995, stating:
The policy and procedures manual of the Bullitt County Jail and the rules prescribed by Fiscal Court under KRS 441.045(1) are exempt from inspection. Policy and procedure manuals and other intra-office memorandum [sic] of a detention facility are exempt from the requirement of public inspection.
Mr. Bleemel also denied Mr. Houston's request for all records relating to him, and maintained pursuant to 501 KRS 3:020, Section 5, advising him that "the failure of an inmate to identify specific documents in his institutional file precludes release of the file." This appeal followed.
In response to a June 6, 1995, request for additional information from the Office of the Attorney General, Mr. Bleemel elaborated on the Bullitt County Jail's position. Relying on KRS 61.878(1)(h), now codified and hereinafter referred to as KRS 61.878(1)(j), he observed:
A police department's denial of a request to inspect and copy their [sic] operations manual was supported by the provisions of KRS 61.878(1)[(j)] as it was deemed an intra-agency document setting forth policies and recommendations affecting the security and safety of the police officers, the public, and the city. 86 Op. Atty. Gen. 38 (1986). This opinion recognized that elements such as personal and public security and administrative orders are considered in granting or denying an open records request. The Operations and Procedures Manual for the Bullitt County Jail is an intra-agency document that sets forth policies and recommendations affecting the security and safety of the jail staff and the people of Bullitt County. . . .
As additional support for this position, Mr. Bleemel cited OAG 79-546, arguing that release of the manual would imperil jail security. With respect to Mr. Houston's request for rules governing operation of the jail which were prescribed by the Bullitt Fiscal Court pursuant to KRS 441.045(1), Mr. Bleemel asserted that such rules are incorporated into the jail manual and are exempt from disclosure under KRS 61.878(1)(j). To facilitate our review, Mr. Bleemel provided this office with a copy of the Policy and Procedures Manual. That record was not disclosed to other parties, and has since been destroyed.
Finally, Mr. Bleemel advised, Mr. Houston's request for all jail records and files relating to him was denied because the request lacked specificity. Citing OAG 85-375 for the proposition that the failure of an inmate to identify specific documents in his institutional file precludes release of the file, Mr. Bleemel noted that Mr. Houston did not describe the records he wished to inspect with specificity, and, accordingly, the Bullitt County Jail was not obligated to honor his request. Alternatively, he argued that these same records are exempt per KRS 61.878(1)(a) inasmuch as their disclosure would constitute a clearly unwarranted invasion of Mr. Houston's personal privacy. Mr. Bleemel observes that the records could not be released solely to Mr. Houston. If Mr. Houston's request were granted, he reasoned, "each and every citizen of the Commonwealth would be able to view these records."
In a response dated June 26, 1995, Mr. Houston questions these arguments. His position is summarized at page 12 of his thoroughly researched and well-reasoned letter:
The records I've asked to inspect have been adopted and filed with the Department of Corrections under Title 501 KAR 3:020 Section 1(1) and have therefore lost any "preliminary" status they might have had in the past. University of Kentucky [v. Courier-Journal, Ky., 830 S.W.2d 373, 378 (1992)]. Consequently, KRS 61.878(1)(i) no longer exempts these records. Id. at 378. There is no "intra-office" or "intra-agency" exemption under the Open Records Act in general, or KRS 61.878(1)(i) in particular. Mr. Bleemel's security and safety concerns are recently fabricated and phony. No records at issue in this case qualify for exemption under KRS 61.878(1)(a). Finally, my request is sufficiently specific as Mr. Bleemel knows exactly what records I want to inspect and makes no claims of ignorance or unreasonable burden.
It is Mr. Houston's position that "even 'blanket' requests should be okay[;] the test in every case should be functional--not technical."
The question presented in this open records appeal is whether the Bullitt County Jail properly relied on KRS 61.878(1)(j), and prior opinions of this office, in denying Mr. Houston's request for its policy and procedures manual, and rules prescribed by the Bullitt County Fiscal Court per KRS 441.045(1), relating to jail operations. For the reasons set forth below, we conclude that although the Bullitt County Jail issued a denial in good faith, based on its reliance on previous open records opinions and authorities cited therein, we do not believe that the line of reasoning advanced in those opinions supports a blanket denial of Mr. Houston's request. We therefore find that the jail's refusal to permit Mr. Houston access to the manual in its entirety, including rules prescribed by the Bullitt County Fiscal Court incorporated into the manual, was improperly premised on the cited exception. It is, however, the opinion of the Attorney General that portions of the manual may properly be withheld under KRS 61.878(1)(1) which incorporates KRS 197.025(1) and (2), authorizing nondisclosure of records of a jail, or any facility under the jurisdiction of the Department of Corrections, which are deemed to constitute a threat to the security of inmates, correctional staff, the institution, or any other person, including policies and procedures which address the security and control of inmates. In addition, we believe that KRS 61.872(6) may authorize the partial withholding of the manual, and accompanying rules, insofar as a request for information the disclosure of which would compromise a governmental interest, and necessitate an immediate revision of policy or practice so as to avoid subversive use of the information, would place an unreasonable burden on the Bullitt County Jail in producing public records. Denial under this section must, however, be sustained by clear and convincing evidence. KRS 61.872(6).
A brief analysis of prior opinions of this office is warranted. In an early open records opinion, the Attorney General analyzed the propriety of withholding the procedure manual of a detention center. OAG 79-546. At page 3 of that opinion we observed:
[The] policy and procedure manuals and other intra-office memoranda of a detention facility are exempt from the requirement of public inspection by KRS 61.878(1)(h) [now codified as KRS 61.878(1)(j)].
A requester's reason for wanting to inspect certain public records is generally not a factor to be considered under the Open Records Law. Although the sensitive nature of the procedure manual of a detention center is easily recognized, there is no statute which expressly exempts records of such a nature. However, this office has consistently recognized that intra-office communications are exempt from mandatory disclosure by KRS 61.878(1)(j). A public agency whose function does not involve the peril which goes with a detention center operation may have a policy of making its procedure manuals available to the public when it believes it is in the public interest to do so. On the other hand, we believe that a detention center, jail or prison is fully authorized to forbid disclosure of documents which set forth procedure involving the security of the facility. General business records, however, do not come under this exemption.
OAG 79-546, p. 3. See also, OAG 83-337.
In OAG 86-38, this logic was extended to the operations manual of a police department. At page 4 of that opinion, we reasoned:
The operations manual of a police department, like the operations manual of a mail and a state correctional facility, . . . involves people in potentially perilous situations who are attempting to protect themselves, the public and the entities they serve. Elements such as personal and public security and administrative order are involved.
These opinions were adopted as the basis for decision in subsequent open records appeals such as OAG 92-112, 93-ORD-118, 94-ORD-114, and 95-ORD-113, and were grounded in the notion that an operations manual is a preliminary, intra-agency document in which policies are formulated or recommended. Today we depart from that view. To the extent that the policy and procedures manual of a public agency represents final action of the agency relative to the matters addressed in the manual, the earlier line of opinions cited above can no longer be relied on as controlling.
As Mr. Houston correctly notes, pursuant to 501 KAR 3:020 Section 1(1), the policy and procedure manual for the Bullitt County Jail is "adopted by the fiscal court and filed with the Department of Corrections." This then, is the final action of the jail and the fiscal court with respect to jail policies and procedures. "Materials that were once preliminary in nature lose their exempt status once they are adopted by the agency . . ." as its final action. See, e.g.,
City of Louisville v. Courier-Journal and Louisville Times, Ky.App., 637 S.W.2d 658 (1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times, Ky.App., 663 S.W.2d 953 (1983);
University of Kentucky v. Courier-Journal and Louisville Times, Ky., 830 S.W.2d 373 (1992). It therefore cannot reasonably be argued that all, or any portion, of the Bullitt County Jail Policy and Procedures Manual is exempt from public inspection pursuant to KRS 61.878(1)(j). 1
Nevertheless, we believe that portions of the manual may properly be withheld under KRS 61.878(1)(1). That exemption authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly," and operates in tandem with KRS 197.025(1) and (2) to exclude certain policies and procedures of a jail or detention facility. KRS 197.025 specifically provides:
(1) KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility under the jurisdiction of the department shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution or any other person .
(2) The policies and procedures or administrative regulations of the department which address the security and control of inmates and penitentiaries shall not be accessible to the public or inmates. The Administrative Regulations Review Subcommittee's review process for these policies and procedures shall be conducted in closed sessions.
The language of this provision is clear on its face. The jailer, acting as the designee of the Commissioner of the Corrections Department, may designate portions of the jail policy and procedure manual as confidential if he or she finds that disclosure would imperil personal and public security and administrative order. Confidentiality may, for example, be appropriate for discreet portions of the manual dealing with security and control and safety and emergency procedures. Conversely, portions of the manual dealing with, for example, fiscal management and inmate programs should not be deemed confidential since their disclosure does not adversely affect the security of the facility. In sum, we believe that although KRS 61.878(1)(j) does not support a blanket denial of the Bullitt County Jail's Policy and Procedures Manual, that manual having been formally adopted by the fiscal court, the jail may properly withhold certain portions of the manual if the jailer determines that their disclosure constitutes a threat to the security of the inmates, staff, or the public generally.
Further, we find that a public agency may properly invoke KRS 61.872(6) to deny a request for public records, including but not limited to a jail policy and procedures manual, if release of those records would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records, or information contained therein. Such a request may be treated as unreasonably burdensome within the meaning of KRS 61.872(6) which provides:
If the application places an unreasonable burden in producing public records . . ., the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
Nondisclosure is warranted in the present case to the extent that it protects those portions of the manual containing policies and procedures, which, if revealed, would enable persons to impede the goals for which the policies and procedures were adopted, to wit, the safety and security of a detention facility. In more general terms, and with respect to other public records, 2 nondisclosure is warranted if the records could be used to circumvent or violate the law. If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies. In other words, the provision is expansive enough to authorize judicious use, where warranted, but narrow enough to prevent profligate use, where unwarranted.
Moreover, it seems incongruous to attribute to the General Assembly an intention to require public agency revelation of internal manuals, or other public records, which would facilitate violation of the law and undermine its enforcement. In the instant appeal, disclosure of portions of the Bullitt County Jail Policy and Procedures Manual affecting the security and safety of inmates, staff, and the public would significantly increase the risk of harm to these individuals and facilitate escape. This cannot have been the legislature's goal. Consistent with the rule of statutory construction articulated in
Renaker v. Commonwealth, Ky.App., 889 S.W.2d 819 (1994) and elsewhere, that statutes should not be construed so as to bring about an absurd or unreasonable result, we conclude that the Open Records Law must be given a construction that is reasonable, and promotes the public's interest in security and administrative order. To that end, we find that the law, by and through the cited exemptions, prohibits disclosure of public records containing information the disclosure of which would significantly compromise that interest. Pursuant to KRS 61.878(4), requiring a public agency to separate excepted material from nonexcepted material and to make the latter available for examination, the Bullitt County Jail is directed to release to Mr. Houston those portions of its Policy and Procedures Manual which do not implicate security concerns, within the contemplation of KRS 197.025, and whose disclosure would not necessitate an immediate revision in policy and practice relative to the preservation of order in the facility.
Turning to the final issue in this appeal, we find that the Bullitt County Jail properly denied Mr. Houston's request for "all jail records/files" pertaining to him and maintained pursuant to 501 KAR 3:020, Section 5, on the grounds that his request was a blanket request which failed to identify with reasonable particularity the records he wished to inspect.
In OAG 92-56 and a number of subsequent decisions, this office examined the respective duties of a requester in framing, and a public agency in responding to, a request for public records. It is instructive to quote from that decision at length:
Although the purpose and intent of the Open Records Act is to permit the "free and open examination of public records . . .," this right of access is not absolute. KRS 61.882(4). As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81; OAG 91-58. Thus, in a series of opinions, we have held that "blanket requests for information on a particular subject without specifying certain documents need not be honored." OAG 76-375; OAG 83-386; OAG 85-88; OAG 89-8; OAG 89-61; OAG 91-58. Elaborating on this position, in OAG 89-8, at p. 2, we observed:
If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material. OAG 84-342; OAG 89-8.
See also, 93-ORD-116; 94-ORD-12. Those decisions echoed the position which was first articulated by the Attorney General in OAG 76-375, and are premised on the notion that:
[Public] agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.
It is thus incumbent on a requester, in framing his request, to describe the records he seeks to inspect with reasonable particularity. If he does not, the agency is not obligated to conduct a search for the records.
Mr. Houston requests access to "all jail records/files" which pertain to him and are maintained pursuant to 501 KAR 3:020, Section 5. That regulation states as follows:
(1) The information required by 501 KAR 3:120 and 3:130 for admission and release shall be retained for each inmate. Other information retained in each inmate's jail record shall include but not be limited to:
(a) Court orders.
(b) Personal property receipts.
(c) Infraction reports.
(d) Reports of disciplinary actions.
(e) Work record and program involvement.
(f) Unusual occurrences and in the case of death of an inmate, disposition of the inmate's property and remains.
Although Mr. Houston had access to the regulation, and thus knew, at least in part, the nature of the records in the jail's custody which pertain to him, he failed to identify with any degree of precision the specific records which he wished to inspect. Mr. Houston having failed to do so, the Bullitt County Jail is not obligated to honor this portion of his request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. Pursuant to 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.
Footnotes
Footnotes
1 %
We concur with Mr. Houston in the view that there is no exemption in the Open Records Law for "intra-office" or "intra-agency" documents. Such documents may, however, be exempt from public inspection if they contain recommendations, opinions, or policies which have not been, or were never, adopted as final agency action. Compare, 5 USC § 552(b)(5) (exemption under federal Freedom of Information Act for "inter-agency or intra-agency memorandums or letters. . . .").
2 For example, records containing the account number of a public official's government issued credit card, or the combination on a government vault or safe.