Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This open records appeal having been presented to the Office of the Attorney General, and the Attorney General being sufficiently advised, we find that the Kentucky State Reformatory failed to meet its burden of proof 1 in denying Uriah Pasha's September 28, 2011, request for a copy of "reports submitted by or recorded from Officer Fibby Powell that caused Uriah Pasha to be placed in Admin. Seg. on September 1, 2011" on the basis of KRS 61.878(1)(h). We nevertheless affirm KSR's denial of Mr. Pasha's request based on its later invocation of KRS 197.025(1) , authorizing denial of access to records the disclosure of which is deemed "to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." Given the factual context out of which this appeal arises, we do not question KSR's position that "disclosure of the records would pose a threat to the security of the institution and individuals . . . ." 2
In both its original response to Mr. Pasha' request and its supplemental response to Mr. Pasha's appeal, KSP invoked KRS 61.878(1)(h) but offered no explanation of how premature release of the requested reports would harm the agency, the investigation, or adjudication in this matter. Absent such an explanation, this office cannot affirm its denial of the request. Thus, in 05-ORD-003 we rejected a police department's claim that criminal complaints were protected from disclosure by KRS 61.878(1)(h) because the claim was "based on supposition and conjecture, and there [was] no description of the specific harm that [would] occur if [the requester was] allowed to inspect the particular reports." 05-ORD-003, p. 5. A copy of 05-ORD-003 is attached hereto and incorporated by reference.
So, too, is a copy of 07-ORD-039 in which the Attorney General affirmed a correctional facility's denial of an inmate request for an extraordinary occurrence report on the basis that disclosure would pose a threat to security as described in KRS 197.025(1). In that decision, we recognized that in enacting KRS 197.025(1) "the legislature created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure is deemed to constitute a threat to security." As noted above, the circumstances giving rise to this appeal suggest that KSR did not abuse its discretion in invoking KRS 197.025(1) to deny Mr. Pasha's request. Its position is fully supported by 07-ORD-039 the reasoning of which is hereby incorporated.
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:
Uriah Pasha, # 092028Marc AbeloveLinda M. Keeton
Footnotes
Footnotes