Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Penitentiary (KSP) violated the Kentucky Open Records Act when it denied inmate Jessie Brearton's request for a copy of a Segregation Release Sheet. For the reasons stated below, we find that KSP did not violate the Act in its disposition of Mr. Brearton's request.
On October 20, 2017, Mr. Brearton submitted a Request to Inspect Public Records form seeking a "[c]opy of the Segregation Release Sheet pertaining to my seg. out date." On November 2, 2017, Open Records Coordinator Catherine Weicht responded on behalf of KSP. Mrs. Weicht informed Mr. Brearton that his request was denied because "[p]er Josh Patton, CUAII, no such document exists with your name listed on it." She further stated "[p]lease be advised that this office is not in possession of the document you are requesting. "
On November 2, 2017, Mr. Brearton filed an appeal of the denial. His appeal stated that a segregation release sheet does exist "because the Case Treatment Officer reads from it daily." Angela E. Cordery, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of KSP. Ms. Cordery argued that KRS 197.025(2) 1 expressly authorizes correctional facilities to deny a request by an inmate unless the record contains a specific reference to that inmate. This statute, in conjunction with KRS 61.878(1)(l), 2 allows the Department of Corrections, or one of its facilities such as KSP, to withhold records when the records do not contain a specific reference to the inmate who requests the record. She cited numerous decisions by this office to support KSP's reliance on KRS 195.025(2) as grounds for this denial.
The exemption of KRS 197.025(2) allowed KSP to deny Mr. Brearton's request for the segregation sheets. The statute states that the department shall not be required to comply with a request for any record "unless the request is for a record which contains a specific reference to that individual." This Office has interpreted this statutory provision as requiring a reference to a particular inmate by name. 14-ORD-224; 09-ORD-057. The segregation release sheets do not refer to segregation unit inmates by name. A document that makes an indirect reference to an inmate, but does not specifically refer to that individual by name, is subject to the KRS 197.025(2) exemption. See 04-ORD-086 (finding that a letter referencing "[m]y cube mate" was not a "specific reference" within the meaning of KRS 197.025(2)). Accordingly, we find that KSP did not violate the Open Records Act by denying this request.
Ms. Cordery provided a supplemental response to Mr. Brearton's request by letter dated November 28, 2017. The supplemental response explained that Deputy Warden Skyla Grief had reviewed Mr. Brearton's appeal and determined that he had incorrectly described the record he wanted. In his appeal, Brearton had further described the document as the one "the case treatment officer reads from [. . .] daily." From that description, Deputy Warden Grief determined that the inmate was actually referring to a document containing information from KOMS (Kentucky Offender Management System). The document, referred to as "Restrictive Housing Inmates, " provides the daily status of inmates in segregation. The printout is a temporary list with the names of inmates that are to be released from segregation and is not retained. Mr. Brearton is not scheduled to be released from the Restrictive Housing Unit until December 29, 2017, and so his name will only appear on that printout in December, but not prior to December. Ms. Cordery attached a printout from KOMS showing Mr. Brearton's current cell location, review date and "out-date." The printout was provided to Mr. Brearton with Ms. Cordery's supplemental response. Ms. Cordery's supplemental response reflects that this printout should contain the information that Mr. Brearton actually wanted in his records request.
A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 197.025 states: "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."
2 KRS 61.872(1)(l) exempts from the Open Records Act: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."