Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Chris Hawkins appeals Green River Correctional Complex's denial of his April 13, 2015, request for a copy of his "most recent transfer authorization form denied by Central Office in March or April, 2015." Relying on KRS 61.878(1)(j), GRCC advised Mr. Hawkins that "[t]ransfer recommendations which are not implemented are subject to the exemption for 'preliminary recommendations' ? and need not be disclosed." (Emphasis in original.) On appeal, Mr. Hawkins argues that "[t]he transfer recommendation was denied by KDOC's 1 Central Office and is finalized [. I]t is not preliminary." (Emphasis in original.)
In supplemental correspondence directed to this office after Mr. Hawkins initiated this appeal, DOC refuted his argument that the unapproved transfer authorization form forfeited its preliminary characterization when it was denied by Central Office. DOC quoted from 09-ORD-088, affirming its position that:
[w]ith regard to any recommendations for transfers that were not acted upon, these would be subject to the exemption for "[p]reliminary recommendations" under KRS 61.878(1)(j). In those published cases and decisions of the Attorney General which refer to documents as losing their "preliminary" characterization, the exempt status is lost only because the document has been adopted as the basis of final agency action and made a part of that final action. See, e.g., Ky. State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953, 956 (Ky. App. 1983); City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659 (Ky. App. 1982); 93-ORD-9; 97-ORD-168; 08-ORD-230. If a transfer recommendation was not implemented, then it was not adopted as the basis of a final action. Accordingly, any such document necessarily remains preliminary and need not be disclosed.
Because Mr. Hawkins' transfer authorization was denied, DOC asserted, 09ORD-088 is the controlling legal authority, and GRCC's denial of his request for the record was entirely proper. We agree. A copy of 09-ORD-088 is enclosed and its reasoning adopted in full.
Mr. Hawkins unsuccessfully raised the same argument in 12-ORD-218. That decision arose from Kentucky State Reformatory's denial of his request for the transfer authorization form from KSR to any other correctional facilities. Although resolution of the issue presented in that open records decision turned on the application of KRS 197.025(1) to the disputed form, this office characterized as "valid" DOC's position regarding application of KRS 61.878(1)(j) to the transfer authorization form in dispute. In 12-ORD-218, Mr. Hawkins also objected to the inconsistency in institutional practices concerning release of transfer authorization forms, noting that he had obtained a copy of an earlier form from Otter Creek Correctional Complex. Mr. Hawkins raises the same objection in the appeal before us, noting that he obtained a copy of an earlier transfer authorization form from GRCC.
In 12-ORD-218, DOC explained that OCCC's decision to release an earlier transfer authorization form to Mr. Hawkins "violated DOC policy . . . ." DOC offers no explanation for GRCC's decision to release an earlier transfer authorization form in response to Mr. Hawkins' prior request. However, since this office issued 12-ORD-218 Kentucky's highest court has recognized that, in enacting the exemptions to the Open Records Act, "the General Assembly did not intend to mandate an iron rule of nondisclosure whenever an exemption applies." Lawson v. Office of the Attorney General, 415 S.W.3d 59, 68 (Ky. 2013). In support of this position, the Court recognized that such an "iron rule of nondisclosure run[s] counter to the principle, fundamental in our law, that rights, even fundamental rights, may be waived." Id . Although GRCC did not expressly waive KRS 61.878(1)(j) in releasing Mr. Hawkins' earlier transfer authorization form, it was not precluded from doing so under the rule announced in Lawson .
Assuming, for the sake of argument, that GRCC's release of the earlier transfer authorization form to Mr. Hawkins was inadvertent, this office has long recognized that an agency's inadvertent actions or mistakes in releasing records does not estop the agency's denial of subsequent requests for similar records. OAG 83-140; OAG 90-117 (rejecting argument that agency was estopped from denying requester a copy of a record that it inadvertently released for inspection) ; compare 10-ORD-023 (agency's refusal to provide a copy of a record previously released for inspection was improper because it invoked no exemption supporting nondisclosure and failed to establish that the record was inadvertently disclosed). Whatever the reason for its inconsistent handling of Mr. Hawkins' earlier request and the request which resulted in this appeal, we find no basis for assigning error to GRCC for its denial of Mr. Hawkins' April 13, 2015, open records request.
Either party may appeal this decision 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:
Chris Hawkins, #103061Teresa ShanklinCatherine Stevens
Footnotes
Footnotes