22-ORD-249
November 21, 2022
In re: Dennis Bell/McCracken County Regional Jail
Summary: The McCracken County Regional Jail (“the Jail”) did not
violate the Open Records Act (“the Act”) when it denied a request for
certain incident reports and medical and injury reports of inmates.
However, the Jail failed to meet its burden of proof to sustain its denial
of visitor logs, phone logs, and “communications with any law
enforcement personnel.”
Open Records Decision
On August 29, 2022, Dennis Bell (“Appellant”) attempted to deliver a request
to inspect records to the Jail. But the Jail refused to accept it and told the Appellant
to deliver the request to the County Judge/Executive’s office. The Appellant then
immediately submitted his request to the County/Judge Executive’s office and asked
for the “complete and unredacted records” related to a specified inmate at the Jail
that were created between February 11 and June 2, 2022, including “incident reports,
medical reports, injury reports, visitor logs, phone logs and communications with any
law enforcement personnel.” Having received no response to his request by
September 8, 2022, the Appellant initiated this appeal.
Under KRS 61.880(1), a public agency must respond in writing within five
business days after receiving a request to inspect records. On appeal, the Jail relies
on a response it issued on September 9, 2022. However, this response was not timely
because the Jail received the request on August 29, 2022,1 making its response due
1
The Appellant presented his request directly to the Jail on August 29, 2022. Although the Jail
did not accept delivery, the Appellant complied with the Jail’s delivery instructions and submitted his
request to the County Judge/Executive’s office. Accordingly, the Jail received the request on August
29, 2022.by September 6, 2022. Accordingly, the Jail violated the Act when it failed to issue a
timely response.
The Jail denied several portions of the Appellant’s request based on different
exceptions to the Act. First, the Jail denied the request for “incident reports” under
KRS 197.025(1), which is an enactment of the General Assembly incorporated into
the Act under KRS 61.878(1)(l). Under KRS 197.025(1), “no person shall have access
to any records if the disclosure is deemed by the commissioner of the department or
his designee [here, the Jail] to constitute a threat to the security of the inmate, any
other inmate, correctional staff, the institution, or any other person.” Specifically, the
Jail states that an incident report released to the public could “make its way into the
hands of an individual that would exploit [it] in a manner that could create animosity
and discord among the inmates [and] security personnel and chill the effectiveness
and reliability of the facility reporting and investigative process.” The Jail also claims
release of the incident reports will “create a risk of retaliation against inmate [sic]
and even employees that provided information to facility personnel.”
This Office has historically deferred to the judgment of correctional facilities
in determining whether the release of certain records would constitute a security
threat under KRS 197.025(1). In particular, this Office has upheld the denial of
incident reports based on a risk of retaliation against inmates or facility staff. See,
e.g., 16-ORD-247; 12-ORD-123. Therefore, under the facts of this appeal, this Office
defers to the judgment of the Jail to determine that the release of incident reports
would pose a security threat under KRS 197.025(1).
Next, the Jail invoked KRS 61.878(1)(a) to deny inspection of “medical reports,
injury reports, visitor logs, and phone logs of [the inmate] because they are of a
private nature and not outweighed by the public’s interest in disclosure.”
KRS
61.878(1)(a) exempts from disclosure “[p]ublic records containing information of a
personal nature where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.” In reviewing an agency’s denial of an open
records request based on the personal privacy exemption, the courts and this Office
balance the public’s right to know what is happening within government against the
personal privacy interest at stake in the record. See Zink v. Commonwealth, Dep’t of
Workers’ Claims, 902 S.W.2d 825, 828 (Ky. App. 1994). The balancing of an asserted
privacy interest against the public interest in disclosure of records is a “highly fact-
dependent” inquiry. See, e.g., 14-ORD-057. This Office has recognized a significant
privacy interest in medical information that will typically outweigh the ordinary
public interest in disclosure. See, e.g., 19-ORD-207; 18-ORD-186; 03-ORD-208.
Therefore, in the absence of any facts suggesting a heightened public interest in thisinmate’s medical information, the Jail did not violate the Act when it withheld the
inmate’s medical reports and injury reports under KRS 61.878(1)(a).2
With regard to visitor logs, however, the Jail has not met its burden of proof
under KRS 61.880(2)(c) to sustain its actions. In 93-ORD-102, this Office found that
the privacy interest in the identities of visitors to a jail was “minimal.”3 Although the
public interest in disclosure of the visitor log was found to be equally minimal, the
Act requires a “general bias favoring disclosure.” Id. Therefore, the Office found the
log must be disclosed “in the absence of any direct evidence” that the invasion of
personal privacy was “clearly unwarranted” under KRS 61.878(1)(a). Id. So too here,
the Jail has not articulated any facts that would render the minimal invasion of
personal privacy “clearly unwarranted.” Therefore, the Jail violated the Act when it
withheld visitor logs under KRS 61.878(1)(a).
Similarly, the Jail has not met its burden of proof that KRS 61.878(1)(a)
applies to deny inspection of the inmate’s phone logs. As with visitor logs, the public
interest in disclosure of inmate phone logs will typically be de minimis, because such
records are likely to reveal “little or nothing about an agency’s own conduct.” Zink,
902 S.W.2d at 829. However, the Jail has not explained what information is contained
in the phone logs, or why that information implicates a substantial privacy interest
such that its disclosure would constitute a “clearly unwarranted invasion of personal
privacy.” KRS 61.878(1)(a). Because the burden rests with the public agency to
sustain its action, the Jail’s mere assertion of a privacy interest, without more, is
insufficient to justify its denial of inspection. KRS 61.880(2)(c). Therefore, the Jail
violated the Act when it withheld the inmate’s phone logs under KRS 61.878(1)(a).
Finally, the Jail denied inspection of “communications with any law
enforcement personnel” under KRS 61.878(1)(h). KRS 61.878(1)(h) permits
nondisclosure of “[r]ecords of law enforcement agencies or agencies involved in
administrative adjudication that were compiled in the process of detecting and
investigating statutory or regulatory violations if the disclosure of the information
would harm the agency by revealing the identity of informants not otherwise known
or by premature release of information to be used in a prospective law enforcement
action or administrative adjudication.” In support of its denial, the Jail claims that
releasing the records “has the potential [to] adversely color witnesses’ recollection of
the events” and “would disclose information . . . to be used in a prospective law
enforcement action, including further investigation by investigators, and the review
2
Because inmate medical information is exempt from disclosure under KRS 61.878(1)(a), it is
unnecessary to consider the Jail’s argument concerning the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”).
3
However, personal information such as home addresses may be redacted from the visitor log
under KRS 61.878(1)(a). See 06-ORD-120; see also Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d
76 (Ky. 2013).and assessment of the evidence by prosecutors as they prepare the matter for final
disposition and/or trial.” The Jail further states that disclosure of the records would
improperly permit “inspection beyond the scope of which such information may
discovered [sic] under Kentucky’s rules of criminal procedure.”
KRS 61.878(1)(h) consists of three elements. First, the records must be “records
of law enforcement agencies or agencies involved in administrative adjudication.”
Second, the agency must show the records were “compiled in the process of detecting
and investigating statutory or regulatory violations.” Finally, the agency must show
release of the records “would harm the agency by revealing the identity of informants
not otherwise known or by premature release of information to be used in a
prospective law enforcement action or administrative adjudication.” Although a jail
may sometimes qualify as an agency able to invoke KRS 61.878(1)(h), it has the
burden of showing that it is conducting a law enforcement investigation or an
administrative adjudication. See, e.g., 93-ORD-102. Here, the Jail has not attempted
to make such a showing. Alternatively, an agency may invoke KRS 61.878(1)(h) on
behalf of a separate law enforcement agency that has requested nondisclosure of
records where disclosure would harm an ongoing investigation. See, e.g., 17-ORD-213;
14-ORD-223; 09-ORD-143. Here, the Jail has attempted to show that disclosure of
records in its possession would harm the prosecutors in conducting a pretrial
investigation.
However, the Jail does not identify the type or form in which the
“communications” were communicated to distinguish them from one another, i.e.,
emails, notes, radio dispatches, reports, or other types of communications. When an
agency relies on KRS 61.878(1)(h), it must also establish that the records “were
compiled in the process of detecting and investing statutory or regulatory violations”
and the release of those categories of records will cause harm to the investigation. In
other words, the agency must “identify and review its responsive records, release any
that are not exempt, and assign the remainder to meaningful categories. A category
is ‘meaningful’ if it ‘allows the court to trace a rational link between the nature of the
document and the alleged [harm to the agency].’” City of Ft. Thomas v. Cincinnati
Enquirer, 406 S.W.3d 842, 851 (Ky. 2013) (quoting Bevis v. Dep’t of State, 801 F.2d
1386, 1389 (D.C. Cir. 1986)). Here, the Jail has not sufficiently identified or assigned
to categories the “communications with . . . law enforcement personnel” in its
possession to establish that they were compiled in the process of detecting statutory
or regulatory violations, or that the release of such records would cause harm to that
investigation. Thus, the Jail has not met its burden of proof under KRS 61.880(2)(c).
Alternatively, the Jail claims that these “communications” are exempt under
KRS 17.150(2). Under KRS 17.150(2), “[i]ntelligence and investigative reports
maintained by criminal justice agencies are subject to public inspection if prosecution
is completed or a determination not to prosecute has been made. However, portionsof the records may be withheld from inspection if the inspection would disclose . . .
[i]nformation contained in the records to be used in a prospective law enforcement
action.” KRS 17.150(2)(d). When an agency invokes KRS 17.150(2), “the burden shall
be upon the custodian to justify the refusal of inspection with specificity.” KRS
17.150(3). Here, the Jail has not sufficiently identified the withheld records in its
possession to determine whether they are “[i]ntelligence and investigative reports”
within the meaning of KRS 17.150(2). Nor has the Jail attempted to establish that it
is a “criminal justice agenc[y]” within the meaning of KRS 17.150(2). Therefore, the
Jail has failed to meet its burden of proof that KRS 17.150 applies to the specific
records withheld. Accordingly, the Jail violated the Act when it withheld
“communications with any law enforcement personnel.”
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 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#334
Distributed to:
Mr. Dennis Bell
Sam Clymer, Esq.
David Knight, Jailer