Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the Northpoint Training Center's (NTC) denial of the open records request of Mark W. Thompson, an inmate at the institution, for copies of records which pertain to his April 25, 1999 request for a transfer from NRC to Green River Correctional Complex and his protective custody hearing held on April 30, 1999. Mr. Thompson requested copies of his:
1. Department of Corrections Transfer Authorization Form for a transfer recommendation to the Green River Correctional Complex written by Mr. Hundley, case worker in SMU, on April 25, 1999.
2. Department of Corrections Protective Custody Form for a hearing held on April 30, 1999, in which the staff members comprising the committee were Unit Administrator Burdette and caseworker C. Hundley.
Kathy Gifford, Lieutenant, Open Records Coordinator, responding to Mr. Thompson's request on behalf of NTC, denied his request, stating:
Pursuant to KRS 61.878(1)(i) which states:
"Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final agency action of a public agency" and (j) which states "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies are formulated or recommended, " the request is denied as the documents contain recommendations and do not represent any final action by the agency.
In his letter of appeal, Mr. Thompson asserts that the record wherein he requested a transfer from NTC to Green River Corrections Complex was not a preliminary record because the Warden had denied his request, thus the agency had taken final action on his request. Mr. Thompson further states, in reference to his protective custody hearing, that he had appealed the protective custody decision and was entitled to a notice of the outcome of that appeal.
As authorized by KRS 61.880(1) and 40 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs elaborated on Lt. Gifford's denial of Mr. Thompson's request, explaining:
After reviewing the Transfer Authorization Form in question, I agree with Lt. Gifford's denial of the request.
The form was prepared in anticipation of the inmate's transfer from Northpoint Training Center to Green River Correctional Complex (GRCC). In order for the document to reflect any final agency action, not only the Warden, but also the Central Office Branch Manager must sign it as well. The decision regarding transfer is not "final" until it is either approved or disapproved by Central Office. Exhibit 1 does not contain any signatures beyond those of the Classification and Treatment Officer and his Supervisor.
KRS 61.878(1)(i) and (j) permit a public agency to withhold "preliminary drafts" and "preliminary recommendations. " The form in question retains its preliminary character as it was not as adopted as part of the Department's final action (to transport the inmate to GRCC) and it was not referred to, nor incorporated in, any response issued by the Department or its representative. Warden Morgan's letter of 10 May 1999 states that the inmate's appeal of his transfer to the Penitentiary shall remain the same. The inmate has been provided with a copy of the Transfer Authorization that resulted in his transfer to Eddyville. As is clear from Exhibit 2, all of the necessary personnel have reviewed and responded to the transfer request. The Warden's designee has approved the transfer. Central Office has provided "final approval" of the transfer. The Transfer Authorization Form prepared for possible transfer to GRCC has not been processed and approved per department practice. The fact that Ms. Conger could not locate copies of either of the requested documents in the inmate's file also indicates that the documents were preliminary in nature. Any and all documentation that impacts an inmate's housing, custody level, work assignment, or physical condition is maintained in his institutional file. A preliminary document that does not have a demonstrable impact upon the inmate should not be maintained in the file. If the forms had been reviewed by the Warden and Central Office, but were denied by the appropriate staff signature, the inmate would have been entitled to receive same.
We are asked to determine whether the denial of Mr. Thompson's request was a violation of the Open Records Act. For the reasons that follow, we conclude that the agency's denial was proper and consistent with the Act and prior decisions of this office.
KRS 61.878(1)(j) excludes from disclosure:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Pursuant to KRS 61.880(2) and 40 KAR 1:030, Section 3, in order to facilitate our review of the agency's response, we requested NTC to provide this office with copies of the documents which are the subject of this appeal. Our in camera review of these documents reveals that both the Transfer Authorization Form and the Protective Custody Form are preliminary in nature in that neither represent final agency action. As explained by the Department, recommendations for transfer or protective custody are not final until they are either approved or disapproved by Central Office.
The Classification and Treatment Officer and his Supervisor recommended that Mr. Thompson be transferred to GRCC, the recommendation was never adopted by the Warden and the Central Office. Likewise, the Classification Committee's recommendation relative to protective custody was not acted upon by Central Office. In other words, no final agency action was taken on the recommendations. As such, the documents at issue remain preliminary documents, exempt under KRS 61.878(1)(j). Accordingly, we conclude NTC properly denied Mr. Thompson's request for these records.
In his letter of appeal, Mr. Thompson states that a month later, on May 25, 1999, he again appeared before the Special Management Unit classification committee in a protective custody hearing and a second transfer recommendation was made. This time a transfer to the Kentucky State Penitentiary was recommended. A copy of the Transfer Authorization Form, which Mr. Thompson attached to his letter of appeal, indicates that the recommendation was approved by the Warden's designee and Central Office concurred with the recommendation. In this instance, final agency action was taken on the recommended transfer and Mr. Thompson was provided a copy of this document.
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.