Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This question having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that although its responses were procedurally deficient, Luther Luckett Correctional Complex did not violate the substantive provisions of the Open Records Act in the disposition of two records requests submitted by Justin Murray, an inmate housed at LLCC. LLCC responded to Mr. Murray's undated request for the Department of Corrections' regulations "explaining and instructing how minimum expiration dates are calculated and assessed" on the date it received the request, providing Mr. Murray with a copy of KRS 439.555 but failing to cite an exception authorizing nondisclosure of the requested regulations. LLCC responded to Mr. Murray's April 16, 2010, request for the regulation "that informs and explains how the department determines how to credit on a person's sentence the good time under KRS 197.045(1) . . ." on April 21, 2010, the date it received the request, explaining that the Department "applies sentence credits to each individual inmate according to many different laws and regulations" but noting that it is not required "to compile a list of each statute and policy used for sentence calculations." Again, LLCC failed to cite the statutory exception authorizing nondisclosure of the requested regulations. 1
In supplemental correspondence directed to this office, the Justice and Public Safety Cabinet amplified on LLCC's position. The Cabinet advised:
[A] regulation does not contain a specific reference to Mr. Murray and the record is exempt pursuant to KRS 61.878(1)(l) and KRS 197.025(2). KRS 197.025(2) expressly authorizes correctional facilities like [LLCC] to deny a request by an inmate unless the record contains a specific reference to that inmate. " 08-ORD-271, p. 3. The Department of Corrections is not obligated to provide copies of records when they do not contain a specific reference to the inmate who requests them. The Attorney General's Office has held that 04-ORD-076 and 03-ORD-073 are controlling on this issue. See 08-ORD-271, 07-ORD-219.
In closing, the Cabinet noted that Mr. Murray could utilize LLCC's inmate law library to conduct his own research on this question.
LLCC erred in failing to cite the statute restricting access in its denials of Mr. Murray's request. KRS 61.880(1) establishes procedural guidelines for agency response to open records requests and includes, in part, a requirement that "an agency response denying, in whole or in part, inspection of any record . . . 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 omission of the statutory exception and accompanying explanation rendered LLCC's responses to Mr. Murray's requests deficient.
KRS 197.025(2) provides:
KRS 61.870 to 61.884 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 contains a specific reference to that individual.
The Cabinet properly observes, albeit belatedly, that this access restriction is incorporated into the Open Records Act by KRS 61.878(1)(l), authorizing public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." In so doing, the Cabinet corrects the deficiencies in LLCC's responses to Mr. Murray's requests. Its reliance on this statutory access restriction finds support in past open records decisions, including 03-ORD-073, a copy of which is attached hereto and incorporated by reference. Accordingly, LLCC's denials of Mr. Murray's requests were substantively correct and did not violate the provisions of the Open Records Act.
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.
Justin Murray, # 205024Cheri MattinglyAmy V. Barker
Footnotes
Footnotes
1 Where a specific statute authorizes nondisclosure of a record, it is clearly advisable for a public agency to invoke that statute, and the exception incorporating it into the Open Records Act, rather than advance general arguments arguably supporting nondisclosure. The agency may also consider arguing in the alternative.
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