Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Kentucky State Reformatory did not violate the Open Records Act in denying Steven Pierce's November 20, 2011, request for:
1. The hand-written incident report by Lt. Bennie Greer on 2d shift 11/20/2011 @ 09:46:00 or 10:50:00 pm involving inmate Steven D. Pierce # 205391[;]
2. One copy of the document showing/or statement of time count cleared from 8:30 pm count on 11/10/2011.
In denying numbered request one, KSR advised Mr. Pierce:
Sr. Captain Jay Whitfield spoke with Lt. Bennie Greer and he stated that he did not do a "handwritten" incident report on 11/20/11 in regards to the incident you were involved in. [Sic.] Lt. Greer did review the disciplinary report that was issued and stated that it is true and accurate. 1
Offender Information Specialist Marc Abelove explained to Mr. Pierce that he could not produce a nonexistent record and that the Open Records Law does not obligate him to do so. In denying numbered request two, KSR advised Mr. Pierce that KRS 197.025(2), incorporated into the Open Records Law by KRS 61.878(1)(l), authorizes correctional facilities to withhold records requested by an inmate that do not contain a specific reference to the inmate and that the requested time count document did not contain any reference to Mr. Pierce. These responses were consistent with the requirements of the law and supported by legal precedent.
It is the decision of this office that 03-ORD-073 and 04-ORD-086 are dispositive of KSR's denial of Mr. Pierce's request for "count records." Copies of those decisions are attached hereto and incorporated by reference. Under the current standard for inmate access to records that do not identify them, KSR's position is correct. Although the requested record may "impact him," KRS 197.025(2) precludes Mr. Pierce's access to the record.
So, too, we believe 01-ORD-4 is dispositive of Mr. Pierce's request for the nonexistent handwritten report he believes Lt. Greer generated. A copy of that decision is also attached. KSR provides a plausible explanation for the nonexistence of the handwritten report that includes the assertion that "handwritten reports are not required to be created." While it would be helpful for KSR to cite the corrections policy upon which it relies in making this assertion, we trust that its position finds support in policy. We therefore affirm KSR's position. 2
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:
Steven Pierce, # 205391Marc AbeloveAmy V. Barker
Footnotes
Footnotes
1 In supplemental correspondence directed to this office, KSR advised that although handwritten reports "may be prepared for disciplinary proceedings," they are not required. The agency explained that Lt. Greer orally reported information to an employee who typed the disciplinary report. Lt. Greer subsequently confirmed the accuracy of the report.
KSR also advanced an additional argument in support of its denial of Mr. Pierce access to the "count records." Relying on KRS 197.025(1), the facility asserted that these records "contain information of a sensitive nature the release of which poses a threat to security including facilitating escape." The facility cited numerous open records decisions affirming its reliance on KRS 197.025(1).
2 Because the referenced authorities are dispositive of the issues on appeal, we do not address KSR's alternative argument under KRS 197.025(1).