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 Corrections Corporation of America violated the Open Records Act in failing to respond to William L. Hayden's September 9, 2002, request for "a copy of River City Manual, Policy 20-101, Chapter 20, Procedure C(8) (CCA-060-064) Page 11-CCA-01696, pertaining to the contract that was applicable between CCA and Jefferson County, Kentucky referring to inmates that are on 'work release' from the CCA Facility." Mr. Hayden's request went unanswered, prompting him to initiate this appeal. For the reasons that follow, we find that CCA violated KRS 61.880(1) in failing to respond to Mr. Hayden's request.
On more than one occasion, this office has recognized that private providers, such as Corrections Corporation of America, are publicly accountable through records access under the Kentucky Open Records Act. See, e.g., 94-ORD-27; 96-ORD-184; 96-ORD-235. KRS 197.510(7) is abundantly clear on this point, providing:
The private provider shall develop and implement a plan for the dissemination of information about the adult correctional facility to the public, government agencies, and the media. The plan shall be made available to all persons. All documents and records, except financial records, maintained by the private provider shall be deemed public records as defined by KRS 61.870 and be subject to the provisions of KRS 61.872 to 61.884.
In construing this provision, the Attorney General has observed:
The aim of privatization, as we understand it, is to implement private sector management efficiency and principles of competitive business in the traditionally public penal sector. The state does not, of course, entirely forfeit its responsibility for operating correctional facilities. It retains the power to supervise and monitor the management and operation of the facilities. See, e.g. KRS 197.505(1); KRS 197.510(4); KRS 197.510(5); KRS 197.510(7); KRS 197.510(9); KRS 197.510(10); KRS 197.510(29); KRS 197.515; KRS 197.525.
Moreover, the private provider is publicly accountable. The records of the private provider are, in general, treated as public records within the meaning of KRS 61.870(2). KRS 197.510(7). That statute stops short, however, of mandating wholesale disclosure of private provider records. It expressly exempts financial records maintained by the private provider, presumably out of a recognition that the provider is a private entity which might be competitively disadvantaged by the release of these records.
94-ORD-27, p. 5 (emphasis original). The record at issue in this appeal is not a financial record of a private provider, but is instead a precisely identified work release policy.
On October 24, 2002, this office sent a copy of Mr. Hayden's open records appeal, along with our notification of receipt of the appeal, to Corrections Corporation of America pursuant to 40 KAR 1:030 Section 2. Although that notification clearly stated that CCA could respond to the appeal, we received no response to our notification, and have not been advised that CCA has taken any action relative to Mr. Hayden's request.
Corrections Corporation of America's failure to respond to Mr. Hayden's open records request in a proper and timely fashion constitutes a violation of KRS 61.880(1). That statute provides:
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.
CCA had not one but two opportunities to comply with KRS 61.880(1) by responding to Mr. Hayden's original request and by responding to his request upon receipt of this office's notification of appeal. CCA failed to do so. CCA having advanced no statutory basis for denying Mr. Hayden access to the requested policy, we find that it must make the policy available to him or notify him in writing that no responsive policy exists. See, e.g., 02-ORD-186.
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.
William L. Hayden, # 142092Northpoint Training CenterP.O. Box 479Burgin, KY 40310
Sherril Gautreaux, DirectorLegal AffairsCorrections Corporation of America10 Burton Hills Blvd.Nashville, TN 37215