Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Leonel Martinez appeals Kentucky State Penitentiary's response to his March 17, 2016, request for copies of "the job sheets from August 2015." KSP denied Mr. Martinez's request on March 17, advising him that "a public agency cannot afford a requester access to records which do not exist" and "discharges its duties under the open records act by affirmatively so stating." Additionally, KSP stated, "3 cell house does not do job sheets. " 1 On appeal, Mr. Martinez emphasized that his request was not limited to 3 cell house. Moreover, he noted, Grievance Committee Hearing Notifications contain similar information and are regularly disclosed. He attached a copy of a hearing notification, identifying multiple inmates by name, number, and cell location, in support of his position.
Responding to the allegations in Mr. Martinez's appeal, KSP stated that its denial based on the nonexistence of responsive records "was a correct response for the majority of the month of August 2015, since Inmate Martinez spent most of the month in a segregation unit, 3 cell house, and job sheets are not used in 3 cell house. " Nevertheless, KSP acknowledged that:
its response should also have contained information to address the few days that Martinez was not housed in 3 cell house in August 2015. A search of the job sheets for that portion of August located one job sheet that contained a specific reference to Inmate Martinez. That job sheet has been offered to Inmate Martinez upon payment of the copy cost.
As for all other job sheets identified in Mr. Martinez's request, KSP asserted that "job sheets for other inmates . . . are not the type of record in which a specific reference would be made to Inmate Martinez." Citing KRS 197.025(2) and KRS 61.878(1)(l), KSP maintained that it is "not obligated to provide records when they do not contain a specific reference to the inmate who requests the record." It was not the position KSP took in originally denying Mr. Martinez's request before conducting a search for responsive records.
Mr. Martinez originally requested:
Copy of the job sheets from August 2015 KSP has denial job due to race KSP supervisor used racial behavior making job white and black only: Bureau of Prison (BOP) prohibit racial discrimination: providing access to work The job sheets will prove that KSP has violate my constitutional rights.
[Sic.] Denying the request based on the nonexistence of any records, KSP responded that "[t]hree cell house does not do job sheets. " KSP did not conduct a search for all records responsive to Mr. Martinez's actual request for "job sheets from August 2015;" nor did it conduct a search for records responsive to its very narrow interpretation of Mr. Martinez's request as a request for job sheets pertaining to Mr. Martinez for August 2015. KSP did not "identify and review its responsive records, release any that are not exempt, and assign the remainder to meaningful categories . . . ." for which a statutory exemption was invoked. City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.2d 842, 851 (Ky. 2013). 2 Only after he challenged the denial in an open records appeal did KSP undertake a search for job sheets pertaining to Mr. Martinez. One record was belatedly located and is available to him upon prepayment of copying fees. However, had he not challenged the denial, that record would not have been located. The basis for KSP's denial of his request, as KSP narrowly construed it, was improper.
Following submission of Mr. Martinez's appeal, KSP belatedly conducted a search for all "job sheets from August 2015". 3 That search, which revealed the existence of a nonexempt job sheet relating to Mr. Martinez, also revealed the existence of other job sheets that did not contain a specific reference to Mr. Martinez. KSP belatedly invoked KRS 197.025(2) and KRS 61.878(1)(l) as the basis for denying him access to these records. 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.
This confidentiality provision is incorporated into the Open Records Act by KRS 61.878(1)(l) which authorizes 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[.]" Under the express language of the provision, KSP is legally entitled to withhold records that do not contain a specific reference to Mr. Martinez. Contrary to Mr. Martinez's objection, KSP may refuse to release job sheets, without violating the Open Records Act, even though the job sheets contain information that is regularly released in a different type of record. There are a multitude of ORDs affirming correctional facilities' denials of inmate requests for other records that did not contain specific references to the requesting inmates. See, e.g. 15-ORD-220 and authorities cited therein. Accordingly, we affirm KSP's denial of Mr. Martinez's request for job sheets that do not contain a specific reference to him under the legal theory it first advanced on appeal.
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.
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