Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that, with the exception of Otter Creek Correctional Center's unexplained disposition of Taquan Neblett's March 21, 2011, request for a copy of his internal classification assessment, the facility did not violate provisions of KRS 61.870 to 61.884 in responding to his March 18 requests for "C.C.A. Policy 18-1 as indicated in C.C.A. Policy 18-2" and his "classification development plan as indicated by C.C.A. Policy 18-24." Nor did OCCC violate the Act in the disposition of Mr. Neblett's March 21 request for "C.C.A. Policy 18-1." If Mr. Neblett's March 21 request for his internal classification assessment was submitted per CCP 6.1, Inmate Correspondence, and was thereafter honored, we find no error in the disposition of his request. If Mr. Neblett's request for his internal classification assessment was submitted per CCP 6.1 and was thereafter denied, Mr. Neblett may raise this issue in a separate open records appeal. If Mr. Neblett refused to submit his request for his internal classification assessment per CPP 6.1, and the request has not yet reached the records custodian through appropriate mail routing, this issue is not ripe for review per KRS 61.880(2).
In his letter of appeal, Mr. Neblett objects to OCCC's request for clarification of two of his open records applications and the facility's refusal to treat his redrafted requests as institutional legal mail. With reference to the first issue, OCCC responds that its records custodian required clarification of his March 18 requests because Mr. Neblett's "classification development plan would contain a specific reference to him, and would therefore be a record he could access if not otherwise exempt" pursuant to KRS 197.025(2). 1 OCCC explained that, "the classification policy," on the other hand, "would not contain a specific reference to any prisoner . . . and would be disclosed on a discretionary, rather than mandatory basis." Under these circumstances, we believe the records custodian's request for clarification was justified, and find no evidence of an intent to subvert the requirements of the Open Records Act short of denial of inspection.
Mr. Neblett's fundamental objection arises from his inability to "prov[e] service" of an open records request upon OCCC by virtue of the facility's refusal to treat the request as legal mail. OCCC responds that its practice mirrors Department of Corrections Policy and Procedure 6.1 Section VI(B)(2)a. and b., requiring submission of inmate open records requests by institutional mail to the coordinator or by first class regular mail to the custodian of the agencies' records. In
Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), the Kentucky Supreme Court rejected DOC's reliance on CPP 6.1 Section VI(B)(1)(c) to support a specificity requirement that did not exist in the Open Records Act, noting that the policy:
provides no relief to the DOC in this case because it purports to add a requirement not found in the statutes[, a]nd an administrative agency "cannot by its rules and regulations, amend, alter, enlarge or limit the terms of a legislative enactment."
Chestnut at 662, citing
Camera Center, Inc. v. Revenue Cabinet, 34 S.W.3d 39, 41 (Ky. 2000) and
Brown v. Jefferson County Policy Merit Board, 751 S.W.2d 23 (Ky. 1988). CPP 6.1 Section VI(B)(1)a. and b. do not, in our view, add a requirement not found in the Open Records Act and therefore do not "amend, alter, enlarge, or limit the terms" of the Act.
KRS 61.872(2) authorizes submission of open records requests by hand-delivery, mail, or facsimile. It does not impose a duty on the recipient agency to utilize a mail routing system that "proves service." Mr. Neblett does not contest, nor do we address, his inability to transmit his request by hand-delivery or facsimile, focusing instead on OCCC's refusal to treat his open records requests as legal mail. CPP 6.1 Section VI(B)(2)a. and b. recognize his right to utilize institutional mail or first class mail. This increases, rather than decreases, his mailing options, but reserves legal mail for mail that "concerns a challenge to the legality of either the inmate's criminal conviction or the conditions of his incarceration." 2 In support of this practice, OCCC observes:
The legal mail system should not be used as a date stamping vehicle for correspondence of every variety. Inmates have extensive constitutional protections that depend on an orderly legal mail system. Overburdening that system with mail that isn't actually entitled to legal privilege risks undermining the orderly operation of that system, and interfering with inmates' real exercise of those rights.
In the absence of proof that Mr. Neblett's right to mail his open records requests, established in KRS 61.872(2), is impeded by CPP 6.1 Section VI(B)(2)a. and b., we approve the actions of OCCC in the implementation of the policy because it does not amend, alter, enlarge, or limit the terms of that provision of the Open Records Act. 3 The fact that Mr. Neblett cannot utilize legal mail for submission of open records requests to "prov[e] service" of those requests has no bearing on our analysis insofar as the Open Records Act does not invest him, or any other open records requester, with this right.
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.
Distributed to:
Taquan Neblett, # 119028Cole CarterAmy V. Barker
Footnotes
Footnotes
1 KRS 197.025(2), incorporated into the Open Records Act by KRS 61.878(1)(l), provides as follows:
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.
2 CPP 6.1, Inmate Correspondence.
3 The Attorney General has already done so on at least one prior occasion. See 09-ORD-076, note 1.