25-ORD-048
February 18, 2025
In re: Jackie Jerome/Kentucky State Penitentiary
Summary: The Kentucky State Penitentiary (“the Penitentiary”) did
not violate the Open Records Act (“the Act”) when it denied a request for
records that are exempt under KRS 61.878(1)(j).
Open Records Decision
Inmate Jackie Jerome (“Appellant”) submitted a request to the Penitentiary
for “all copies of incident [and] occurrence reports on” December 4, 2024, related to a
specific incident involving the Appellant. The Penitentiary denied the request under
KRS 61.878(1)(i) and (j) because the records are “part of the supplemental material
for 3 pending [disciplinary reports] related to [the] incident.” The Penitentiary
suggested the Appellant try again in two weeks because the active cases may be
closed by then. This appeal followed.
On appeal, the Penitentiary reiterates that the Appellant sought records that
are exempt because they are preliminary and relate to pending disciplinary reviews.
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) further
exempts “[p]reliminary recommendations, and preliminary memoranda in which
opinions are expressed or policies formulated or recommended.” The Penitentiary
explains that the requested records are part of the files related to disciplinary reviews
that “are still pending review by the Warden and, therefore, remain subject to
revision.”
The 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-
297; 23-ORD-100; 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 Penitentiary did not violate the Act
when it withheld these records related to incidents for which the investigation is
ongoing.1
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.
Russell Coleman
Attorney General
/s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#041
Distributed to:
Jackie Jerome #318303
Michelle Harrison
Renee Day
Ann Smith
1
Because the Office finds that KRS 61.878(1)(j) is dispositive of this appeal, it is unnecessary to
examine the application of KRS 61.878(1)(i).