Request By:
James Harrison, # 095435
Sonya Wright
Amy Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in its disposition of inmate James Harrison's open records request for his personal legal file that had been confiscated by EKCC. For the reasons stated below, we find that EKCC did not violate the Act.
On August 23, 2017, inmate James Harrison requested to inspect his "legal file confiscated by Lt. Hilman and held in the property room by Lt. Havens. . ." EKCC received the request on August 24 and made a timely response on August 29, 2017. 1 Sonya Wright, Offender Information Supervisor, responded to the request by explaining that she had forwarded his request to Lt. Wallace and Lt. Felton, and that Lt. Wallace had stated that there was only one legal file that IA (Internal Affairs) had any involvement with, and that "you [Mr. Harrison] would not get that back because it was considered contraband." Mr. Harrison appealed that response to this office by letter of September 2, 2017, but stated no specific reason for the appeal other than allegations that employees of EKCC and the Department of Corrections had violated "other laws."
On appeal, Amy V. Barker, Assistant General Counsel, Justice & Public Safety Cabinet, responded on behalf of EKCC. Ms. Barker clarified that Mr. Harrison's personal legal records had been confiscated from him because they exceeded the volume limit allowed by CPP 17.1. 2 Ms. Barker explained that Mr. Harrison seeks to inspect the confiscated personal records through an open records request. "The Open Records Act does not contemplate an inmate's personal legal papers that are held in storage in the institution at which he is housed as being open and available for inspection or copies under the Act. Under inmate Harrison's theory of access, a member of the public could access [an inmate's] 'legal file' since it has been confiscated or is in storage. " Ms. Barker continued:
A prison is a different environment from a government office in another setting. The Attorney General has repeatedly found that an inmate "must accept the necessary consequences of his confinement" for a variety of issues that are different within a prison. 95-0RD-105, p. 3; 15-ORD-005, 14-ORD-162; 12-ORD-117; 10-ORD-036, 08-ORD-242. In the case of an inmate's property the types and amounts are limited for various reasons including fire, safety, and security. See CPP 17.1. The institution has rules for access to property that has been removed and is in storage. An inmate cannot use the Open Records Act as a means to try to get around the rules concerning inmate property and its control.
The Attorney General has looked at a situation that has many similar aspects in construing the definition of public records to not include reference materials like statutes, regulations, and case law that are maintained by a public agency. See 99-ORD-35, 99-ORD-181, 00-ORD-130, 01-ORD-5, 01-ORD-98, 03-ORD-140, 04-ORD-200, 05-ORD-055, 08-ORD-114, 10-ORD-207, 11-ORD-130, 14-ORD-073, 16-ORD-196. The AG determined that while these records may be possessed by an agency, this type of record "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " and would not "reflect the daily functioning, programs, and operations of [a correctional facility or the Department of Corrections]." 04-0RD-200 at *2, quoting 99-0RD-35, p. 4; cf. Valentine v. Personnel Cabinet, Com., 322 S.W.3d 505, 508 (Ky.App. 2010). Nothing about an inmate's personal legal papers would facilitate any of the purposes that underlie the Open Records Act.
As pointed out by Ms. Barker, this office has specifically construed the definition of "public record" codified at KRS 61.870(2) to exclude reference materials, including statutes, administrative regulations, and case law. (See references cited by Ms. Barker above). Acknowledging that such materials might technically qualify as "public records" due to being "in the possession of or retained by a public agency, " this office nevertheless concluded that disclosure of such materials "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " so they could not be characterized as "public records" within the scope and meaning of the Act. 99-ORD-35, p. 4. In so doing, the Attorney General contrasted reference materials generally available in a library with public records that fall within the broad parameters of KRS 61.870(2), and that "reflect the daily functioning, programs, and operations of [a public agency] ." Id.
We concur with Ms. Barker's analysis and conclude that legal files that are the personal property of an inmate are excluded from the definition of "public records. " Disclosure of such obviously personal files "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " so they should not be characterized as "public records" within the scope and meaning of the Act. Also, as illuminated by Ms. Barker, construing the personal property of an inmate to be "public records" would allow the public, and not just the inmate to whom the records belong, to have access to any inmate's personal records held by a state correctional facility. That logical extension of Mr. Harrison's argument is an absurdity that is not a purpose of the Open Records Act. Accordingly, we find no violation of the Open Records Act by EKCC in not providing the requested personal property in response to Mr. Harrison's open records request.
Also, as noted in Ms. Barker's response, an open records appeal is not the proper forum for Mr. Harrison to raise complaints not related to the Open Records Act or to request investigations of alleged violations of "other laws" by employees of EKCC. The Office of the Attorney General is only granted the authority under KRS 61.880(2) to issue "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884," and therefore we make no decision regarding these other complaints by inmate Harrison.
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.
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