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 the Grayson County Jailer, Joey F. Stanton, violated the Open Records Act in his disposition of Muhammad Thabit and Victoria King Rashad's (the Rashads) request for various records pertaining to the facility, and Mr. Rashad's incarceration in the facility. For the reasons that follow, we conclude that although Mr. Stanton's response was procedurally deficient, his partial denial of the Rashads' request was, with the exception of the items noted below, substantively correct.
In a letter dated August 14, 2000, the Rashads requested copies of the following:
Names of all Inmates, last known address, and telephone numbers housed in "Dorm # 7" on July 19th, 2000. In addition the names, titles of all employees who work from July 18--July 19, 2000, their address and telephone numbers. Moreover, the name of the Grayson County Deputy who accompany the U.S. Marshall on July 19, 2000 to the FCI Manchester BOP, Also any and all records, receipts, property receipts, and files regarding the undersigned. [Sic.]
On August 17, 2000, Mr. Stanton responded to the Rashads' request by releasing property receipts relating to Mr. Rashad to them. This appeal followed.
In a supplemental response dated September 5, 2000 directed to Mr. Rashad following commencement of the Rashads' appeal, Grayson County Attorney Thomas H. Goff advised:
On August 14, 2000, you made a request for the names, addresses and phone numbers for the employees at the Grayson County Jail as well as inmates that were housed here during your incarceration.
According to KRS 197.025 and KRS 61.878 this information is privileged and is not subject to the open records request. Your request must therefore be denied.
Mr. Goff offered no additional explanation for the jailer's denial of the Rashads' request for the name of the Grayson County deputy who accompanied the U.S. Marshall on July 19, 2000, or their request for "all records, receipts, . . . and files regarding [Mr. Rashad]."
We begin by noting certain procedural irregularities in the jailer's response to the Rashads' request. Although Mr. Stanton promptly furnished Mr. Rashad with one group of responsive records, consisting of property receipts, he apparently failed to offer any explanation for his decision to withhold the remaining responsive records. KRS 61.880(1) provides as follows:
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 record 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.
The three day response time for public agencies codified at KRS 61.880(1) was statutorily extended for jails, correctional facilities, and the Department of Corrections in 1998. KRS 197.025(7) now provides that these agencies "shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released." This amendment did not, however, relieve these agencies of their duty to include in a response denying access, in whole or in part, "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. " Mr. Goff subsequently attempted to cure this defect by citing the applicable confidentiality provision, specifically KRS 197.025, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and explaining very briefly that "names, addresses and phone numbers for the employees at the Grayson County Jail as well as inmates that were housed there during [Mr. Rashad's] incarceration . . . [are] privileged. " While this response still falls short of the "particular and detailed" response contemplated by the
Kentucky Court of Appeals in Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996), it satisfies, albeit minimally, the requirements of KRS 61.880(1).
On behalf of Mr. Stanton, Mr. Goff asserts that nondisclosure of the names, addresses, and telephone numbers of employees of the Grayson County Jail who worked from July 18 to July 19, 2000, as well as the names of inmates housed in Dorm Number 7 on July 19, along with their last known addresses and telephone numbers, is authorized by KRS 197.025. That statute provides:
(1) KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision 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) 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.
The language of this provision is clear on its face. The jailer, acting as the designee of the commissioner of the Department of Corrections, may designate certain agency records as confidential "if he or she finds that disclosure would imperil personal and public security and administrative order." 95-ORD-121, p. 7. Disclosure of the names, addresses, and phone numbers of jail employees, as well as inmates housed in the facility, would clearly constitute a threat to their security as well as to the security of their families, and we affirm Mr. Stanton's denial of this portion of the Rashads' request. See also, 98-ORD-138 (recognizing that KRS 61.878(1)(a) authorizes nondisclosure of records containing home addresses and telephone numbers of jail employees because the public's interest in disclosure is outweighed by the employees' privacy interest).
Moreover, this office has frequently recognized that KRS 197.025(2) authorizes a jail or correctional facility to withhold from an inmate records which do not pertain to that inmate, and at least twice recognized that the provision authorizes nondisclosure of an inmate roster. See, 99-ORD-161; 00-ORD-153. At pages 2 and 3 of 99-ORD-161, we observed:
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[, a jail, or a correctional facility] . Simply put, [an inmate] may only inspect records that pertain to him.
Records reflecting the inmate population in a given facility on a given date, as well as employees who worked on that date, along with their home addresses and telephone numbers, do not relate to Mr. Rashad, and therefore access was properly denied.
Nevertheless, we note that both Mr. Stanton and Mr. Goff failed to cite any exception authorizing nondisclosure of records reflecting the identity of the Grayson County Deputy who accompanied the U.S. Marshall on July 19, 2000, and any other records, receipts, or files relating to Mr. Rashad. Assuming such records exist, it is incumbent on the Grayson County Jailer to release them to the Rashads, or to justify nondisclosure in terms of the requirements of KRS 61.880(1). Mr. Stanton is directed to advise the Rashads forthwith if a statutory basis exists for denying them access to these records, or, alternatively, to furnish them with these records upon prepayment of a reasonable copying charge not to exceed ten cents per page. KRS 61.874(3);
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985).
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 proceedings.