Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Little Sandy Correctional Complex (LSCC) violated the Open Records Act by denying an inmate's request for emails and phone call recordings regarding a disciplinary action. We find that LSCC committed a procedural violation of KRS 61.880(1) by not citing the exception authorizing the denial in its initial response. On appeal, LSCC fully explained the basis of its denial and we find no substantive violation of the Open Records Act.
By request dated June 15, 2017, inmate John Tillman, asked for "all JPay messages and Securus phone calls that are claimed to be evidence in my Cert. 6.3 write up by IA Barker written on 5-30-17." LSCC timely responded by letter dated June 19, 2017, and denied the request, stating: "There are no JPay emails from your account that were used in the investigation and issuing your disciplinary violation. Also no specific phone call records were saved as evidence in regards to this write-up." Mr. Tillman appealed the denial by letter dated June 30, 2017.
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal by letter dated July 14, 2017. Ms. Barker explained that "the JPay messages and phone calls used as part of the disciplinary action (adjustment proceeding) did not contain a reference to John Tillman, so he was not entitled to those records pursuant to KRS 61.878(1)(l) and 197.025(2)." In support of her response, Ms. Barker provided an affidavit of Chris Barker, Correctional Officer, LSCC. Mr. Barker stated that he reviewed the JPay records and the recorded phone calls for the adjustment proceeding referenced in Mr. Tillman's open records request, and that neither the JPay records nor the recorded phone calls contain a specific reference to Mr. Tillman.
Ms. Barker's response cited numerous decisions of this office that uphold the authority of correctional facilities, pursuant to KRS 197.025(2), as incorporated by the Open Records statute KRS 61.878(1)(l), 1 to deny a request by an inmate unless the record(s) contains a specific reference to that inmate.
KRS 197.025(2) 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.
The Attorney General has long interpreted this provision as meaning that only documents mentioning the inmate by name need be provided. See, e.g., 99-ORD-157. Since the JPay messages and phone calls 2 used as part of the disciplinary action do not mention Mr. Tillman by name, KRS 197.025(2) is dispositive of this appeal and LSCC, as explained on appeal, properly denied inspection of the records.
Regarding LSCC's June 19 denial of Mr. Tillman's open records request and pursuant to KRS 61.880(1), "[a]n agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." The June 19 letter did not specify which exception allowed LSCC to withhold the JPay emails. The failure to specify an exception in the June 19 letter constituted a procedural violation of KRS 61.880(1).
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(l) allows public agencies to withhold: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
2 There is a discrepancy between the June 19 letter from LSCC and Mr. Barker's affidavit. The June 19 letter stated that no JPay emails from Mr. Tillman's account were used in the investigation, and that there were no phone call records saved as evidence in regards to the disciplinary action. Mr. Barker stated that he reviewed recorded phone calls and JPay records for the disciplinary action. As Mr. Barker's statement is a sworn affidavit, we defer to his statement in this matter and understand LSCC's statement regarding the records to be in error.