24-ORD-102
April 26, 2024
In re: Jerry Winstead/Kentucky State Reformatory
Summary: The Kentucky State Reformatory (“the Reformatory”) did
not violate the Open Records Act (“the Act”) when it did not provide
records that are exempt from disclosure under federal law.
Open Records Decision
Inmate Jerry Winstead (“Appellant”) requested copies of various records
relating to a Prison Rape Elimination Act (“PREA”) “incident that is alleged to have
happen[ed] on January 24, 2024.” The Reformatory denied the request under
KRS 197.025(1) because the release of records relating to PREA complaints and
investigations could threaten the security of inmates or correctional staff. The
Reformatory also denied the request under KRS 61.878(1)(a) because “the files
constitute an unwarranted invasion of personal privacy.” This appeal followed.
The Appellant claims the PREA “incident” to which the records relate was
“fabricated,” and that he has never made a complaint under PREA. He further claims
he has an absolute right to inspect the records because they relate to him. On appeal,
the Reformatory notes the Office has previously upheld the denial of PREA records
under KRS 197.025(1), which exempts from inspection any records the Commissioner
of the Department of Corrections deems would “constitute a threat to the security of
the inmate, any other inmate, correctional staff, the institution, or any other person”
if disclosed. See, e.g., 19-ORD-101; 16-ORD-089. Regardless, even if KRS 197.025(1)
does not apply to the requested records, federal law requires the requested records to
remain confidential.
Under 28 C.F.R. § 115.61(b), a federal regulation incorporated into the Act by
KRS 61.878(1)(k), “[a]part from reporting to designated supervisors or officials, staff
shall not reveal any information related to a sexual abuse report to anyone other than
to the extent necessary, as specified in agency policy, to make treatment,
investigation, and other security and management decisions.” Under 28 C.F.R.
§ 115.73, the complaining inmate has the right to be informed “as to whether theallegation has been determined to be substantiated, unsubstantiated, or unfounded.”
But because the Appellant claims he is not the complainant, 28 C.F.R. § 115.61(b)
prohibits the Reformatory from providing him any information about the
investigation. Therefore, the Reformatory did not violate the Act when it denied the
Appellant’s request.
A party aggrieved by this decision may appeal it by initiating an 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.
Russell Coleman
Attorney General
/s/ Marc Manley
Marc Manley
Assistant Attorney General
#186
Distributed to:
Jerry Winstead #175195
Michelle Harrison
Ann Smith
Renee Day