Opinion
Opinion By: Andy BeshearAttorney General;James M. HerrickAssistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Northpoint Training Center ("NTC") properly relied on KRS 61.878(1)(k) and 28 CFR § 115.61(b) in denying inmate Uriah Pasha's October 31, 2018, request for e-mails related to a Prison Rape Elimination Act ("PREA") complaint and investigation. Accordingly, we find no violation of the Open Records Act.
In the relevant portion of his open records request, Mr. Pasha sought a copy of "[a]ll e-mails concerning Uriah Pasha # 092028 from Keith Feck, MS, Licensed Psychological [ sic ] to CPTU July 2018 and to PREA Coordinator Jessica Payton during the month of October 2018 and Payton's response thereto." On November 7, 2018, NTC granted his request, except for "the emails which are PREA related," stating, "Pursuant to KRS 61.878(1)(k) and 28 CFR 115.6(6) [ sic ], PREA records are exempt from disclosure due to the confidential nature of the investigation." On appeal, Mr. Pasha does not dispute that the withheld records pertain to a PREA investigation, but argues that he should have access to the records if he waives his own "confidential protection" as the alleged victim of abuse.
In 18-ORD-206, we upheld the position of the Department of Corrections that information pertaining to complaints and investigations under PREA is confidential pursuant to 28 CFR 115.61(b), 1 as incorporated into the Open Records Act by KRS 61.878(1)(k). We attach a copy of that decision and adopt its reasoning. The federal regulation prohibits disclosure of such information except "to the extent necessary, as specified in agency policy, to make treatment, investigation, and other security and management decisions." The Department's policy, codified in CPP 14.7(J), is that "[a]ll 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."
Since the e-mails in question are undisputedly "related to a sexual abuse report" within the meaning of 28 CFR 115.61(b), they may not be disclosed except as provided in that regulation and in CPP 14.7(J). Because the analysis does not turn on Mr. Pasha's own interest in personal privacy, the federally-mandated confidentiality of the information is not something he can "waive. " Accordingly, we find no violation of the Open Records Act.
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 Although NTC in this case initially gave an incorrect citation for the regulation, its disposition of Mr. Pasha's request was substantively correct.