Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Green River Correctional Complex violated the Kentucky Open Records Act in partially denying the request of Jeremy Boyd for a copy of the "front & back of Copy 1-initial chain of custody form of urinalysis dated 10/12/04." Because the "back page" of the requested form does not contain a "specific reference" to Mr. Boyd, GRCC did not violate the Open Records Act in denying Mr. Boyd's request as to that page on the basis of KRS 197.025(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l).
On a standardized form dated October 28, 2004, Mr. Boyd, an inmate at GRCC, requested a copy of the specified chain of custody form. In a response dated November 18, 2004, Teresa Shanklin, Offender Information Services Supervisor, made the following disposition of Mr. Boyd's request:
Mr. Boyd, I apologize for the delay. I had to contact General Counsel on this to make sure of the correct disposition. You may have a copy of the front of your test dated 10/12/04. However, the back page does not make any reference to you [so access] is denied under KRS 197.025(2)-please see attached.
Attached to Ms. Shanklin's response is a copy of KRS 197.025(2). Arguing that the page at issue contains a "specific reference" to him as evidenced by his signature on the front page of the form, Mr. Boyd now appeals from this disposition of his request.
Upon receiving notification of Mr. Boyd's appeal, Staff Attorney Emily Dennis, Justice and Public Safety Cabinet, Department of Corrections, responded on behalf of GRCC via facsimile received by this office on December 2, 2004. Having quoted GRCC's disposition of Mr. Boyd's request, Ms. Dennis correctly observes:
The Department admits at the outset that Ms. Shanklin's response to Mr. Boyd was procedurally deficient in that Ms. Shanklin did not respond within 5 business days to Mr. Boyd's request. With respect to the procedural requirements of the Open Records Act, KRS 197.025(7) directs the Department of Corrections to determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the records shall be released.
Notwithstanding this procedural deficiency, Ms. Shanklin's response to Mr. Boyd's request complied with the [O]pen [R]ecords [A]ct. Attached for your review in connection[] with this appeal is the back page of chain of custody documents that Ms. Shanklin sent to me for review on 11/17/04 (See Exhibit 1 and attachment). This page is entitled "Instructions on Completing Chain of Custody. " It is not addressed to the inmate, does not contain his name or other specific reference to him, and is exempt from disclosure to Mr. Boyd pursuant to KRS 197.025(2).
Because GRCC has acknowledged that it violated KRS 197.025(7) in failing to respond within five business days, further analysis of this procedural issue is unwarranted.
On November 17, 2004, Ms. Dennis also spoke with GRCC Litigation Coordinator Ron Beck regarding Mr. Boyd's appeal. Based on information which Mr. Beck relayed to her at that time, Ms. Dennis determined "there is a second 'back page' on the chain of custody documents[,]" entitled "Authorization for the Use and Disclosure of Protected Health Information," a copy of which is attached to the DOC's response for our review. According to Ms. Dennis, the express purpose of this form, as set forth in item four, is to "obtain the consent of a donor for Advanced Toxicology Network to disclose test information for employment." 1 Elaborating on the position of GRCC relative to the substantive issue presented, Ms. Dennis explains:
A urinalysis sample taken for the purpose of determining whether an inmate has used unauthorized drugs in a correctional setting is far different from a drug test taken by an individual for employment purposes. The [DOC] does not request inmates to sign the authorization form, nor is the inmate's name filled in the blanks on this page. KRS 61.878(4) requires a public agency to separate public information required to be disclosed from non-public information. When an inmate receives a disciplinary report for unauthorized use of drugs, the inmate receives a copy of the internal chain of custody form for collection of the urine sample and the laboratory chain of custody forms. The Kentucky Court of Appeals has recognized this chain of custody to be reliable and sufficient evidence to justify punishment for using drugs in violation of prison rules. Lucas v. Voirol, Ky. App., 136 S.W.3d 477 (2004). To the extent the back pages of original urinalysis chain of custody documentation contains information that is not addressed to or does not specifically refer to an inmate, [the DOC] is authorized to except those pages from disclosure to inmates under KRS 61.878(1)(l) and KRS 197.025(2).
We agree. Because this appeal presents no reason to depart from governing precedent to this effect, it is the decision of this office that GRCC properly relied upon KRS 197.025(2) in partially denying Mr. Boyd's request.
In reply to GRCC's supplemental response, Mr. Boyd argues that the back page of any document "is by its very existence part and parcel of the front page." According to Mr. Boyd, the DOC's position as to why urine testing exists "is beyond the scope of the instant matter[.]" 2 In his view, the distinction which the DOC makes based on the purpose of the form is "poorly taken" as "employment" is not "the key principle being unlawfully ignored" by the DOC. Equally unpersuasive to Mr. Boyd is the DOC's argument "implying that a prisoner's actual signature is necessary in order to make this 'back page'" accessible. Contrary to Mr. Boyd's assertion, the DOC's interpretation of KRS 197.025(2) is entirely consistent with prior decisions of this office.
As amended in 1998, KRS 197.025(2) provided:
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 2002, the General Assembly further narrowed the scope of public records available to inmates by stipulating that the record must contain a "specific reference" to the requesting inmate as correctly argued by both GRCC and the DOC here. 3 04-ORD-015, p. 3; 03-ORD-073, p. 3. "The net effect of [the 2002] amendment has been to further curtail the inmate's right of access to records maintained by the [DOC] and correctional facilities" under its jurisdiction. 03-ORD-073, p. 3. See 04-ORD-015; 03-ORD-091; 03-ORD-007. To this extent, the identity of the requester is directly relevant since inmates no longer have "the same right to inspect public records as any other person" as a result of the amendments to KRS 197.025(2) , at least with respect to records in the custody of the DOC and facilities under its jurisdiction such as GRCC. 04-ORD-214, pp. 5-6, citing 99-ORD-161, p. 3.
Neither the "Instructions for Completing Chain of Custody" nor the "Authorization for the Use and Disclosure of Protected Health Information" contain any reference to Mr. Boyd as mandated by KRS 197.025(2), Mr. Boyd is not entitled to inspect or receive a copy of the record, notwithstanding the fact that the record may "pertain" to him. Further, the record is devoid of evidence to refute the position of the DOC that inmates are not required to sign the latter form. Absent such evidence, this office has no reason to question the veracity of the DOC. Whatever hardship Mr. Boyd believes this application of KRS 197.025(2) imposes on him, he is precluded from inspecting or receiving copies of records which do not contain a specific reference to him by the express language of this mandatory provision. Accordingly, GRCC did not violate the Open Records Act in partially denying Mr. Boyd's request on the basis of KRS 197.025(2). 4
A party aggrieved by this decision may appeal it by initiating an 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.
Footnotes
Footnotes
1 A review of the attached authorization form confirms the accuracy of this description.
2 Although Mr. Boyd further asserts that any administrative hearing "should be ordered void as this key and vital document was central to [his] defense" that the DOC acted improperly in conducting such a hearing based solely upon incorrect information. Even assuming that Mr. Boyd prevailed on the merits, this issue is beyond the scope of an open records appeal. In short, the role of the Attorney General in adjudicating an open records dispute is defined by KRS 61.880(2), and this office is without authority to deviate from that statute.
3 With this noteworthy exception, the current version of KRS 197.025(2) is identical to the 1998 version.
4 Our review of the pages at issue suggests another statutory basis upon which the DOC could properly deny access. Although there is no "catch-all" exception to theOpen Records Act which encompasses those records, the disclosure of which would compromise significant agency operations and functions, the Attorney General has recognized:
that a public agency may properly invoke KRS 61.872(6) to deny a request for public records. . . if release of those records would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records, or information contained therein. Such a request may be treated as unreasonably burdensome within the meaning of KRS 61.872(6) which provides:
If the application places an unreasonable burden in producing public records . . . , the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In more general terms, and with respect to other public records . . . [for example, records containing the account number of a public official's credit card, or the combination to a government vault or safe] nondisclosure is warranted if the records could be used to circumvent the law. If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient in our view, to discourage abuse by public agencies.
04-ORD-058, pp. 11-12, citing 95-ORD-121, p. 8 (affirming jail's denial of an inmate's request for a policy and procedures manual containing details of security systems currently in place on the basis of KRS 61.872(6)); See 97-ORD-129; 99-ORD-51; 99-ORD-83; 99-ORD-131; 02-ORD-211.