23-ORD-100
May 1, 2023
In re: Rusty Weddle/Luther Luckett Correctional Complex
Summary: The Luther Luckett Correctional Complex (“the Complex”)
did not violate the Open Records Act (“the Act”) when it withheld records
pertaining to an investigation because the investigation had not been
completed at the time of the request, or when it denied a request for
records that do not contain a specific reference to the requesting inmate.
Open Records Decision
Inmate Rusty Weddle (“Appellant”) submitted to the Complex a request for
records containing multiple subparts. At issue here is only the first subpart, which
requested “all emails and documentation” from or to Securus, internal affairs, or
“anyone in” the Complex related to Securus, telephones, the investigation into the
Appellant, and JPay or canteen restrictions.1
1
The second subpart of the request sought all emails and documents from four identified Complex
employees related to phone calls and communications between the Appellant and his attorneys,
Complex employees contacting attorneys on the Appellant’s behalf, or any documentation of Complex
employees’ unsuccessful attempts to contact attorneys on his behalf. The Complex neither granted nor
denied this subpart. Instead, because it was “virtually the same request” as one previously submitted
by the Appellant, and which was the subject of an appeal to this Office to which the Complex was
preparing a response, the Complex stated that he would “receive another written response” and “the
remaining requested documentation” the next day. The Appellant did ultimately receive records in
response to this subpart of his request, but he alleges the Complex did not provide all responsive
records. On appeal, the Complex asserts it has provided all responsive emails and documents to the
Appellant. This Office cannot resolve factual disputes between a requester and a public agency about
the content of the records produced. See, e.g., 23-ORD-050; 22-ORD-010; 19-ORD-083; 03-ORD-061;
OAG 89-81. Consequently, this Office is unable to find the Complex violated the Act when it provided
what it considered to be all records responsive to the request. The Appellant also sought a copy of his
user agreement with JPay, which the Complex denied because no responsive record existed and which
the Appellant has not disputed on appeal. He also sought emails from an identified employee regarding
his broken electronic tablet. Although the Complex originally denied this subpart because noIn a timely response, the Complex denied the request under KRS 61.878(1)(i)
and (j), stating it could not provide the Appellant with any records concerning his
“pending 4-11” because it was still preliminary. This appeal followed.
On appeal, the Complex reiterates that the Appellant’s request sought records
that are exempt because they are preliminary and relate to a pending disciplinary
investigation. KRS 61.878(1)(i) exempts from disclosure “[p]reliminary drafts, notes,
[and] correspondence with private individuals, other than correspondence which is
intended to give notice of final action of a public agency.” KRS 61.878(1)(j) exempts
from disclosure “[p]reliminary recommendations, and preliminary memoranda in
which opinions are expressed or policies formulated or recommended.” The Complex
asserts the disciplinary investigation remains pending because his disciplinary
hearing has not yet occurred. The Complex claims no final action can take place until
after the hearing occurs, and therefore, all records related to this investigation are
still preliminary. This Office agrees that disciplinary records retain their preliminary
status until they are adopted as part of any final action the Complex takes. See, e.g.,
21-ORD-202. Accordingly, the Complex did not violate the Act by withholding these
records.
The Appellant also claims he should have received emails and documentation
regarding Securus in response to his request. On appeal, the Complex states that no
emails or documents related to Securus specifically reference the Appellant.
Under KRS 197.025(2), a correctional facility, such as the Complex, “shall not be
required to comply with a request for any record from any inmate confined in . . . any
facility . . . unless the request is for a record which contains a specific reference to
that
individual.” KRS
197.025(2)
is
incorporated
into
the
Act
through KRS 61.878(1)(l), which exempts from inspection public records “the
disclosure of which is prohibited or restricted or otherwise made confidential by
enactment of the General Assembly.” This Office has historically interpreted “specific
reference” to require a record mention an inmate by name. See, e.g., 22-ORD-119; 22-
ORD-087; 17-ORD-119; 09-ORD-057; 03-ORD-150. Specifically, this Office has found
a record does not contain a “specific reference” to the requesting inmate under
KRS 197.025(2) simply because it is relevant to, pertains to, or personally affects
him. See, e.g., 22-ORD-087; 17-ORD-119; 17-ORD-073.
Here, the Complex states that “there [are] no existing emails or documents
[related to Securus] which specifically reference the inmate.” Thus, under
KRS 197.025(2), the Complex was not required to provide the Appellant a copy of the
record and it did not violate the Act when it denied his request.
responsive records existed, it has since located and provided to the Appellant responsive emails,
rendering any dispute over these records moot. See 40 KAR 1:030 § 6.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 emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#147
Distributed to:
Rusty Weddle #182312
Amy V. Barker
Lydia C. Kendrick
Ann Smith
Kristin Wehking