Opinion
Opinion By: Andy BeshearAttorney General;Gordon SloneAssistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Lee Adjustment Center ("LAC") violated the Open Records Act by denying an inmate a copy of a photograph sent to him through a contract email service. For the reasons set forth below, we find that LAC did violate the Act.
Oral Perkins, an inmate at LAC, requested pictures "off JPAY from Melinda Grimes[.]" 1 He requested two photographs from June 9, 2018, and a third from June 3, 2018. LAC stamped the request as received on November 19, 2018, and responded on November 23, 2018. LAC initially denied access to all three photographs, explaining: "The pictures cannot be provided pursuant to KRS 61.878(1)(l), KRS 520.010(1), CPP 9.6 and CPP 16.2. The pictures contain nudity or sexually explicit material that is contraband and cannot be provided to an inmate. "
Mr. Perkins ("Appellant") appealed the denial to this office on November 27, 2018. In response to the appeal, LAC reviewed the denial and, in a letter dated December 3, 2018, determined that the two photographs dated June 9, 2018, could be released to Appellant. LAC continued with its determination that the third photograph was contraband "due to buttocks in clear, or easily see-through, underclothing." Having released the two photographs dated June 9, 2018, any issues relative to those photographs are now moot 2 and this decision will not further address the denial of those two photographs. By letter of December 5, 2018, G. Edward Henry II, attorney, responded on behalf of LAC, maintaining that LAC's denial of the third photograph should be upheld.
On appeal, LAC argued that the photograph is not a "public record" pursuant to KRS 61.870(2). LAC stated that the photograph is not a record "prepared, owned, used, in the possession of or retained by a public agency. " LAC relied upon the case of Hardin Cty. v. Valentine, 894 S.W.2d 151 (Ky. App. 1995), where the Court of Appeals determined that medical records of patients in a public hospital were not related to the functioning of the hospital, the activities carried on by the hospital, its programs, or its operations, and so were not public records under the Open Records Act. LAC argues that, just as patients' medical records did not relate to the functioning of a public hospital in Valentine, 894 S.W.2d 151, the pictures sent by a person outside the correctional facility to an inmate through JPAY, a private contractor, do not relate to LAC's activities, its programs, or its operations. We concur.
KRS 61.870(2) defines public records as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority .
Emphasis added.
In 99-ORD-35 and 99-ORD-181, the Attorney General construed this provision to exclude reference materials, including statutes, administrative regulations, and case law from the definition of public records subject to the Open Records Act. Acknowledging that such materials may technically qualify as "public records" because they may be "in the possession of or retained by a public agency, " we nevertheless concluded that their disclosure "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " and therefore could not be characterized as "public records" within the scope and meaning of the Act. 99-ORD-35, p. 4. We contrasted these library reference materials 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 correctional facility or the Department of Corrections]." In this instance, the photograph was sent by a person from outside LAC, through JPAY, a contractor-operated electronic messaging service, to an inmate. Under these facts, we conclude that disclosure of the requested photograph, just as with the reference materials at issue in 99-ORD-35 and 99-ORD-181, would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, and therefore cannot be characterized as "public records" within the scope and meaning of the Act. We find that LAC did not violate the Act under these circumstances.
As we have determined that LAC did not violate the Act, we will not unnecessarily burden this decision by reviewing LAC's alternative arguments for not providing the photograph at issue.
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 proceeding.
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