23-ORD-297
November 6, 2023
In re: James Harrison/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (“the
Complex”) violated the Open Records Act (“the Act”) when it initially
denied a request to inspect records under KRS 61.878(1)(h) but failed to
explain how that exception applied to the record withheld. However, the
Complex has substantiated on appeal that the records pertaining to an
ongoing investigation are exempt under KRS 61.878(1)(j) .
Open Records Decision
Inmate James Harrison (“Appellant”) submitted a request to the Complex
seeking “the report” created by a Complex employee on September 20, 2023, “relating
to an alleged incident” involving the Appellant that day. The Complex denied the
request under KRS 61.878(1)(h) because the disciplinary report concerns actions
“currently under investigation and are not a complete record at the present time.”
The Complex also stated the Appellant could resubmit his request when the
investigation was complete and “adopted into the agency’s actions.” This appeal
followed.
KRS 61.878(1)(h) exempts “[r]ecords of law enforcement agencies . . . 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.” When relying on KRS 61.878(1)(h), the
Complex must establish that, “because of the record’s content, its release poses a
concrete risk of harm to the agency in the prospective action. A concrete risk, by
definition, must be something more than a hypothetical or speculative concern.” Cityof Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). However, the
Complex’s initial response did not articulate how release of the information contained
in the disciplinary report would pose a concrete risk of harm to the agency, and
therefore, its response to the Appellant’s request violated KRS 61.880(1).
On appeal, the Complex abandons its reliance on KRS 61.878(1)(h), and now
asserts the disciplinary report is exempt under KRS 61.878(1)(i) and (j).
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 was ongoing at the time of the request and still
is yet to be finalized.
As such, the Complex claims the disciplinary report was exempt
under KRS 61.878(1)(i) and (j) because it was a preliminary record containing
opinions and recommendations at the time the Complex denied the Appellant’s
request. This Office has previously found that the disciplinary reports generated by
correctional facilities in the course of investigating infractions committed by inmates
may be withheld during the early stages of an investigation under KRS 61.878(1)(j)
because they contain preliminary opinions and recommendations. See, e.g., 23-ORD-
022; 21-ORD-202; 16-ORD-266; 16-ORD-096. If, however, any of the preliminary
opinions are adopted in a final correctional facility action after the investigation
concludes, then those preliminary opinions will lose their preliminary status and be
subject to inspection, unless another exemption applies to allow the record to be
withheld. Accordingly, the Complex did not violate the Act when it withheld this
record.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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/ Marc Manley
Marc Manley
Assistant Attorney General
#451
Distributed to:
James Harrison #095435
Amy V. Barker
Sara M. Pittman
Ann Smith