Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Reformatory violated the Open Records Act in responding to the open records requests of Michael Allen Taylor, an inmate at the institution.
On May 22, 2000, Mr. Taylor made an open records request for a copy of the questions used in his April 27, 2000 polygraph test and the results. By letter dated May 26, 2000, Harley Allen, Internal Affairs Supervisor, denied his request, and advised, in relevant part:
The request is being denied pursuant to KRS 61.878(1)(h) which exempts from disclosure records of an agency involved in an active investigation of violations of statutes and/or administrative regulations.
In addition, Mr. Taylor appeals the timeliness of the agency's actions relative to his requests of August 1, 2000 and August 4, 2000 for copies of Adjustment Committee tape of his April hearing.
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 elaborating on the agency's responses to the requests, explained:
I shall first address the issue of the polygraph results. At the time of Mr. Taylor's original request, the investigation was on going; therefore, pursuant to KRS 61.878(1)(h), the request was denied by Harley Allen. This denial was appropriate. Upon receipt of this appeal, I contacted the Reformatory to ascertain the status of the investigation. The file was closed on 1 June 2000. If the inmate had made a subsequent request, the response would have been different. Enclosed is a redacted copy of the polygraph results. Pursuant to KRS 61.878(1) (j), portions of the results have been redacted. KRS 61.878(1)(j) exempts:
The portion of the report dealing with the examiner's observations, opinions and conclusions is exempt under this provision. 93-ORD-124. An examiner's report "in part would be merely a reflection of his opinions and observations. . ." OAG 86-22.
I also spoke to Ms. Perkins regarding Mr. Taylor's request for copies of the Adjustment Committee tape for the April hearing. According to Ms. Perkins, Mr. Taylor's CPO was authorized on 3 August 2000. Pursuant to policy, copies of documents or tapes are not made until the custodian has received notice from inmate accounts that the individual has funds with which to pay for the copies. Ms. Perkins could not make the copy of the tape at that time, as the equipment used to dub the tapes was broken. Staff repeatedly informed Mr. Taylor that the equipment was being repaired and that his copy would be made as soon as possible. A copy of the tape was made on 21 September 2000. In the interim, Mr. Taylor had requested a second copy of the same tape. Ms. Perkins states that a second copy was provided on 28 September 2000. If Mr. Taylor is seeking a copy of an Adjustment Committee tape in addition to the April tape, she has no record or knowledge of that fact. Under the circumstances, staff made every effort to provide Mr. Taylor with a copy of the tape in as timely a manner as possible. Since repair and/or replacement could not be accomplished at an earlier date, staff responded with the tape as quickly as the circumstances would permit. Staff informed Mr. Taylor on numerous occasions that the equipment was not working and his tape would be delayed. They could not give him a date certain, since they did not have a specific date upon which the necessary equipment would be available.
We are asked to determine whether the Kentucky State Reformatory violated the Open Records Act in its responses to Mr. Taylor's open records requests. For the reasons that follow, we conclude that the agency's responses were in substantial compliance with the Act. Accordingly, we find no violation.
KRS 61.878(1)(h) authorizes the nondisclosure of:
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. . . . 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.
This office has consistently recognized that an agency involved in an administrative adjudication is not required to disgorge documents relating to its investigation or enforcement action until the action has been concluded. 93-ORD-69. Since the Kentucky State Reformatory's internal administrative investigation was still ongoing at the time of Mr. Taylor's request, we conclude that the institution properly denied his request for a copy of his polygraph results under KRS 61.878(1)(h). 99-ORD-60.
In her response, Ms. Biggs indicated that, since the date of Mr. Taylor's request the investigation had become final and a redacted copy of the polygraph results had been provided him. She explained the redacted portions of the report dealing with the examiner's observations, opinions and conclusions were exempt under KRS 61.878(1)(j). That statute exempts from disclosure:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
To the extent that KRS 61.878(1)(j) authorizes public agencies to withhold "preliminary recommendations, and preliminary memoranda in which opinions are expressed," that provision authorizes nondisclosure of the polygraph examiner's questions, notes, and report, 99-ORD-204.
We address next the issue of whether the agency timely provided Mr. Taylor with copies of the requested tape. KRS 61.872(5) provides that, if there is to be a delay in producing the requested records which exceeds three business days after receipt of the request, that the agency give the requester a detailed explanation for the cause of further delay and the place, time, and earliest date on which the public record will be available for inspection.
In her response, Ms. Biggs indicated that staff had advised Mr. Taylor repeatedly that the machine used to dub the tape was being repaired and his copy would be provided as quickly as circumstances would permit. No precise day and time as to when the records would be available was given, as the agency personnel did not know how long it would take to get the machine repaired. This response was technically deficient in that it failed to inform Mr. Taylor as to earliest date the requested records would be available for inspection, as required by KRS 61.872(5). Failure to give a date, even though it may only be an estimate, does not give the requester enough information to determine whether access to the records will be provided within a reasonable period of time. However, under the factual situation of the case, we conclude that the procedural deficiency was mitigated by the fact that copies of the requested tape were provided to Mr. Taylor as soon as the machine was prepared.
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.