Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections ("DOC") properly relied on KRS 61.878(1)(k) and 28 CFR § 115.61(b) in denying R. G. Dunlop's October 30, 2017, and July 16, 2018, requests for all records pertaining to complaints, investigations, or discipline involving former DOC employee Gregory Howard. For the reasons that follow, we conclude that DOC's denial did not substantively violate the Open Records Act.
On November 28, 2017, DOC responded 1 to Mr. Dunlop's October 30 request, stating that the records were "part of a PREA investigation" and therefore "not subject to open records due to the confidential nature of the investigation and security and privacy concerns associated with releasing documentation given the subject matter." DOC invoked KRS 61.878(1)(a), 61.878(1)(l), and 197.025(1), as well as "[t]he confidentiality standards contained in the Prison Rape Elimination Act, [34 U.S.C. 30301 et seq. ,] and CPP 2 14.7, in tandem with KRS 197.025(1) and (2)." On August 3, 2018, 3 DOC provided a similar response to Mr. Dunlop's July 16 request, adding that "while the [PREA] investigation is now closed the documents are not available as an open record." Mr. Dunlop initiated this appeal on August 16, 2018. We have examined the disputed records in camera pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and verified that they are PREA investigation documents.
On appeal, DOC relies chiefly on KRS 61.878(1)(k), which excludes from the Open Records Act "all public records or information the disclosure of which is prohibited by federal law or regulation. " As we observed in 15-ORD-208, 34 U.S.C. 30306(e), a subsection of the Prison Rape Elimination Act ("PREA"), "calls for the establishment of 'national standards for enhancing the detection, prevention, reduction, and punishment of prison rape' 4 by, inter alia , 'ensuring the confidentiality of prison rape complaints and protecting inmates who make complaints of rape, ' 5 as well as 'protect[ing] inmates who make prison rape complaints from retaliation, and assur[ing] the impartial resolution of prison rape complaints.'" 6 Among the Department of Justice regulations issued pursuant to PREA is 28 CFR 115.61(b), promulgated in 2012, which provides:
Apart from reporting to designated supervisors or officials, staff shall not reveal any information related to a sexual abuse report to anyone other than to the extent necessary, as specified in agency policy, to make treatment, investigation, and other security and management decisions.
(Emphasis added.)
Implementing this regulation, on February 3, 2014, DOC adopted CPP 14.7(J), which states:
All information in a report or investigation of a sexual offense shall be kept confidential except to the extent necessary to report to an appropriate supervisor, adequately investigate, provide treatment, or make security or management decisions . An individual interviewed in the course of resolving the complaint shall be cautioned to treat the information as confidential. Breach of this confidentiality shall be grounds for disciplinary action.
(Emphasis added.)
"[T]his office will generally defer to the public agency in its interpretation of confidentiality provisions which are binding upon it." 05-ORD-186 (citing 98-ORD-78); see also 13-ORD-127 and decisions cited therein. We note that CPP 14.7(J) effects no further restrictions on access to public records than required by the federal regulation. Cf . 08-ORD-224 (upholding DOC policy where it "corresponds to a statutory enactment"). We also conclude that DOC's denial of all records related to a PREA investigation was consistent with those restrictions.
The confidentiality of such investigations does not completely prevent complaining inmates or the general public from obtaining knowledge of PREA matters. As DOC points out, 28 CFR 115.89(b) requires an agency to "make all aggregated sexual abuse data . . . readily available to the public at least annually through its Web site or, if it does not have one, through other means." In addition, 28 CFR 115.73 requires an agency to inform the complaining inmate "as to whether the allegation has been determined to be substantiated, unsubstantiated, or unfounded," along with other pertinent information about the alleged abuser. Otherwise, however, PREA information is confidential under the terms of 28 CFR 115.61(b).
Mr. Dunlop argues that DOC "is invoking a blanket exception that does not exist." He so argues because DOC, in its pre-appeal responses to Mr. Dunlop, did not cite the specific federal regulation it was invoking for the confidentiality of PREA information. A public agency denying access to public records must not only cite the specific exception on which it relies under KRS 61.878(1), but also give "a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). Accordingly, where the denial is based on KRS 61.878(1)(k), the response must "cite the applicable . . . federal law. "
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996) (quoting 94-ORD-154). DOC's general citation to PREA was insufficient because it did not include 28 CFR 115.61(b), the specific legal authority on which CPP 14.7(J) was based. Therefore, we find that DOC committed a procedural violation of KRS 61.880(1).
As Mr. Dunlop points out, DOC has not previously argued that all PREA records are confidential under federal law. In the majority of past appeals involving PREA investigations, DOC has merely asserted the right to make redactions for security reasons pursuant to KRS 197.025(1). See 12-ORD-123; 16-ORD-089; 16-ORD-047; 17-ORD-211; 17-ORD-251. In other appeals, DOC has invoked the lack of a specific reference under KRS 197.025(2), 7 personal privacy under KRS 61.878(1)(a), the preliminary nature of records under KRS 61.878(1)(j), or the right to require advance payment under KRS 61.874(1). 15-ORD-208; 18-ORD-105; 17-ORD-202; 14-ORD-135. In yet others, DOC has simply provided the records to a requesting inmate. 17-ORD-023; 18-ORD-039. Thus, DOC's position with regard to Mr. Dunlop's request does represent a change from the agency's past treatment of such requests.
By way of explanation, DOC states that this appeal is distinguished from previous ones by the fact that the request came "from a third party," whereas past requests were from either inmates or accused employees. Furthermore, DOC asserts that the analysis of this request has led the agency "to reevaluate its prior position regarding inmate access to PREA reports," so that future requests will not be treated in the same manner.
We agree with DOC's present position; namely, that 28 CFR 115.61(b) prohibits the disclosure of PREA-related information except for certain specified purposes not at issue here. The fact that DOC may not have strictly enforced such confidentiality in the past does not prevent the agency from bringing itself into compliance with federal law. "[A]n agency's inadvertent actions or mistakes in releasing records [do] not estop the agency's denial of subsequent requests for similar records." 15-ORD-092. See also 09-ORD-151, n.2 ("if [the agency] mistakenly failed to do so at first, we see 'no reason to compound the error by questioning its invocation' of a specific exemption now") (quoting 09-ORD-087). Therefore, DOC is entitled to claim the confidentiality exemption for PREA records under KRS 61.878(1)(k). Since KRS 61.878(1)(k) is dispositive of this appeal, we need not address the other exceptions raised by DOC.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 KRS 197.025(7) requires a disposition of an open records request by DOC within five days from receipt, excluding weekends and legal holidays, unless the records are unavailable. On the fifth business day, DOC invoked unavailability of the records and stated it would respond by November 30, 2018.
2 Corrections Policies and Procedures.
3 In the case of this second response, there is no justification in the record for DOC's failure to meet the five-day deadline, and accordingly we find a procedural violation of KRS 197.025(7).
4 34 U.S.C. 30306(e)(1).
5 34 U.S.C. 30306(e)(2)(J).
6 34 U.S.C. 30306(e)(2)(K).
7 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 . . . unless the request is for a record which contains a specific reference to that individual."