23-ORD-049
March 3, 2023
In re: Armstead Baylor/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (“the
Complex”) violated the Open Records Act (“the Act”) when it failed to
inform a requesting inmate that certain records did not exist. However,
the Complex did not violate the Act when it denied inspection of records
that do not exist, records that do not contain a specific reference to the
inmate, or records the disclosure of which would pose a security threat
under KRS 197.025(1).
Open Records Decision
On January 23, 2023, inmate Armstead Baylor (“Appellant”) requested to
inspect “documents, witness’s [sic] statements, staff currency reports, and phone logs
with any security factors redacted[,] in the possession of [the Complex’s] Internal
Affairs office, that has [the Appellant’s] name on it.” He further specified his request
included emails “from anyone to the [sic] Internal Affairs between” August 1, 2022,
and January 23, 2023. In a timely response, the Complex denied the request because
“the disclosure of documents, witness statements, staff currency reports, phone logs,
and e-mails would constitute a threat to the security of inmates, the institution,
institutional staff, or others and cannot be provided pursuant to KRS 197.025(1) and
KRS 61.878(1)(l).”
Additionally, the Complex stated that “[t]he documents are exempt from
disclosure pursuant to KRS 61.878(1)(h), [as] disclosure will constitute the premature
release of information to be used in a prospective criminal action. Disclosure of
documents would cause harm by revealing sources of information and techniques of
investigations and notifying suspects of evidence that is collected. Premature release
of information would further interfere with obtaining reliable information, interferewith witness interviews and potentially taint witnesses, cause an inability to filter
false information, and interfere with jury selection.” This appeal followed.
On appeal, the Complex asserts its Internal Affairs office possesses no witness
statements responsive to the Appellant’s request.1 Additionally, the Complex states
the requested “staff currency reports” do not exist because the Complex does not
create such documents.
When a public agency receives a request for inspection of public records, it
must decide within five business days “whether to comply with the request” and
notify the requester “of its decision.” KRS 61.880(1). An agency response denying
inspection of public records must “include a statement of the specific exception
authorizing the withholding of the record and a brief explanation of how the exception
applies to the record withheld.” Id. The agency must “provide particular and detailed
information,” not merely a “limited and perfunctory response.” Edmondson v. Alig,
926 S.W.2d 856, 858 (Ky. 1996). “The agency’s explanation must be detailed enough
to permit [a reviewing] court to assess its claim and the opposing party to challenge
it.” Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013). Thus, if
the requested records do not exist, then the agency must affirmatively state that such
records do not exist. See, e.g., 22-ORD-038. By initially failing to advise the Appellant
that the requested witness statements and staff currency reports did not exist, the
Department violated the Act.
However, once a public agency states affirmatively that requested records do
not exist, the burden shifts to the requester to present a prima facie case that
requested records do or should exist. See Bowling v. Lexington–Fayette Urb. Cnty.
Gov’t., 172 S.W.3d 333, 341 (Ky. 2005). Here, the Appellant has not attempted to
present a prima facie case that the requested witness statements or staff currency
reports exist. Accordingly, the Complex did not violate the Act when it denied the
Appellant’s request for such records.
The Complex also states its Internal Affairs office possesses two photographs
responsive to the Appellant’s request, but they do not contain a specific reference to
the Appellant. Under KRS 197.025(2), the Department of Corrections “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.”
Accordingly, the Complex did not violate the Act when it denied access to those
photographs.2
1
The Complex states on appeal that it will make the requested phone logs available to the Appellant
after he pays the associated copying costs. Accordingly, the portion of this appeal relating to phone
logs is now moot. See 40 KAR 1:030 § 6.
2
Alternatively, because the Appellant’s request is limited to records “that ha[ve his] name on” them,
the Complex could have denied inspection of the photographs as nonresponsive to the request.Finally, the Complex states it possesses an occurrence report and two emails
to Internal Affairs that are responsive to the Appellant’s request. The Complex
asserts these records are exempt from disclosure under KRS 197.025(1), which is
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 to constitute a threat to the security of the inmate,
any other inmate, correctional staff, the institution, or any other person.” Here, the
Complex explains that disclosure of the records would pose a security threat by
potentially causing “discord between inmates,” and because the records “contain
information concerning other inmates” as well as the Appellant. Furthermore, the
Complex states the records would reveal “sources of information and techniques of
investigation.”
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), including records in which the requesting inmate is
mentioned by name. See, e.g., 22-ORD-195. In particular, this Office has upheld the
denial of records that could cause discord between inmates or reveal investigative
techniques. See, e.g., 22-ORD-249; 16-ORD-247. Therefore, under the facts of this
appeal, this Office defers to the judgment of the Complex to determine that the
release of the occurrence report and e-mails would pose a security threat under KRS
197.025(1). Accordingly, the Complex did not violate the Act when it denied
inspection of those records.3
In sum, the Complex violated the Act when it initially failed to inform the
Appellant that certain records did not exist. However, the Complex did not otherwise
violate the 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 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.
3
Because KRS 197.025(1) is dispositive of this issue, it is not necessary to address the Complex’s
arguments under KRS 61.878(1)(h) or KRS 17.150(2).Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#56
Distributed to:
Armstead C. Baylor, #234423
Amy V. Barker, Esq.
Ms. Lydia C. Kendrick
Ms. Ann Smith