Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Penitentiary properly relied on KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in partially denying inmate Thomas D. Craig's July 22, and July 27, 1999, requests for a copy of "the locator list showing the location of all inmates along with names, numbers, and room number." For the reasons that follow, we conclude that KSP properly denied Mr. Craig's requests.
In his letter of appeal, Mr. Craig complains that the redacted list which was released to him was illegally censored. Relying on prior opinions of the Attorney General requiring disclosure of records containing the names of inmates (OAG 81-395), and recognizing an inmate's equal right of access to nonexempt public records (OAG 92-94), he maintains that he was entitled to an unredacted copy of the sixteen page document rather than a redacted copy of the single page on which his name appears. In support, Mr. Craig notes that KSP regularly releases the names, numbers, and housing assignments of inmates to other inmates/ grievants appearing before the Grievance Committee in the hearing notification issued the day before the committee meets. Mr. Craig furnished this office with eight copies of the notifications to underscore this point.
In a supplemental response dated August 18, 1999, Department of Corrections staff attorney Tamela Biggs elaborated on KSP's position. She explained that KRS 197.025(2) was amended in July, 1998, and that as a result of the amendment, "Inmate Craig was only entitled to receive that portion of the record which 'pertained to him,' i.e., his name and location." It was Ms. Biggs's position that:
KRS 197.025(2) is very specific as to which documents an inmate may receive pursuant to an Open Records Request. Lt. Gossum noted the appropriate statutory provision in support of his denial of the record and stated what the inmate was entitled to receive a copy of. Inmate Craig's interpretation of the statute does not alter its plain language.
We agree.
As amended, KRS 197.025(2) now provides:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which pertains to that individual.
In construing this provision, the Attorney General has observed:
KRS 197.025 underwent significant revision in the 1998 legislative session. [The provision] now limits an inmate's access to records which do not pertain to him or her. While there may be occasions when we are presented with a close [question], [we will defer to the correctional facility's judgment when the records obviously do not pertain to the inmate] . To hold otherwise would open the door to . . . tenuous claims thereby subverting the intent of the recent enactment.
98-ORD-150, p. 3. Whatever hardship Mr. Craig believes this statute works upon him, he is nevertheless restrained from inspecting, or receiving copies of, records which do not pertain to him.
The opinions cited by Mr. Craig in support of his position are not controlling. While this office continues to ascribe to the view that records revealing the identities of inmates housed in correctional facilities cannot be withheld from ordinary persons exercising their rights under the Open Records Act pursuant to KRS 61.878(1)(a), or any other exception to public inspection, those records may be withheld from inmates. As a result of the amendments to KRS 197.025(2), inmates no longer have "the same right to inspect public records as any other person," at least as that right relates to records in the custody of the Department of Corrections. Simply put, Mr. Craig may only inspect records that pertain to him. With the exception of his own entry on the locator list, that list does not pertain to him. Pursuant to KRS 61.878(4), Kentucky State Penitentiary properly separated the excepted material and made the nonexcepted material available to him for examination. These actions, fully authorized by law, did not constitute censorship.
The fact that Mr. Craig regularly receives records containing similar information in the form of a grievance committee hearing notifications does not alter our conclusion. Mr. Craig does not receive these notices in response to a properly presented open records request, but as a means of advising him, and other grievants, when the committee will meet. If Mr. Craig made a request under the Open Records Act for the notifications, he would no doubt be denied access to them on the basis of KRS 197.025(2) if his name did not appear on the notifications. If his name did appear on the notifications, he would only be permitted access to the entry containing his name. The decision to deny, or partially deny, him access turns not on privacy or institutional security concerns, but on the presence of an independent statute, KRS 197.025(2), restricting an inmate's access to records which do not pertain to him or her. We find no error in KSP's actions.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.