NOT TO BE PUBLISHED
February 14, 1994
In Re: James J. Corbett/Kentucky State Reformatory
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by James J. Corbett as a result of his attempts to obtain copies of various documents from the Kentucky State Reformatory.
In a request dated January 3, 1994, Mr. Corbett requested copies of the following documents:
1. The PC form Lt. Eaton had filled out that I refused to sign;
2. The APC form used to place me in APC;
3. Investigative report (or summary thereof) showing completion and results of APC investigation;
4. Recommendations made as a result of investigation with respect to my APC status and any transfer;
5. A summary statement report of all alleged reported conflicts with other inmates, including reason and basis for conflict, confirmation of conflict, and attempts to resolve conflicts.
Ms. Theresa Edwards of the Kentucky State Reformatory, in a statement dated January 7, 1994, made the following disposition of Mr. Corbett's requests:
The request numbered 1 through 4 above are not in your Institutional File, as of this date 1-7-94. Your summary statement report of conflicts request is not available to you due to KRS 61.884 and 61.878 which states:
'No inmate confined in a jail or any facility under the jurisdiction of the Corrections Cabinet shall have access to any records relating to himself or any other inmate if the disclosure is deemed by the warden and treatment staff to constitute a threat to the security of the inmate, any other inmate, correctional staff, or the Institution.'
In his letter of appeal to this office, received January 27, 1994, Mr. Corbett quotes from various provisions, apparently adopted by the Department of Corrections, relating to an inmate's right to obtain copies of various documents. He also takes exception to the invoking of the statutory provision by the Reformatory relative to denying access to records because of threats to security.
When presented with a request to inspect public documents a public agency must address two basic questions: Whether it has the materials requested and, if it does, whether those records are subject to public inspection. The Open Records Act regulates access to public records and not records management. We do not know what is supposed to be in an inmate's file but the basic issue presented here is whether the public agency had the documents in question in its possession at the time the request was made.
The Reformatory advised that four of the five documents requested were not in the inmate's file on the date that the request was made. Under the Open Records Act, that is a proper response in that an agency cannot provide copies of documents which it does not have at the time of the request. See 94-ORD-5 and 93-ORD-143, copies of which are enclosed.
KRS 197.025, restricting access to inmate records, provides as follows:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility under the jurisdiction of the Department of Corrections shall have access to any records relating to himself, or any inmate, or any other records, if the disclosure is deemed by the warden and treatment staff to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
KRS 61.878(1) deals with exceptions to the inspection of records and KRS 61.878(1)(k) provides that "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are exempt from inspection and copying under the Open Records Act.
In OAG 92-ORD-1314, OAG 92-25, and OAG 92-26, copies enclosed, this office dealt with the application of KRS 197.025 by various state correctional facilities. What was said in those opinions and decisions is dispositive as to this particular issue in this appeal. Thus, we believe that the Reformatory acted within its authorized powers when it denied the document on the basis of the provisions set forth in KRS 197.025.
James J. Corbett may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed against the Kentucky State Reformatory, pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
James J. Corbett #26637
Kentucky State Penitentiary
P.O. Box 128
Eddyville, Kentucky 42038
Ms. Theresa Edwards
Kentucky State Reformatory
3001 W. Highway 146
LaGrange, Kentucky 40032