March 25, 1997

In re: Mark L. Dyer/Boyd County Detention Center

Open Records Appeal

This matter comes to the Attorney General on appeal from the Boyd County Detention Center's partial denial of Mark Dyer's September 16, 1997, open records request. Mr. Dyer's request was as follows:

“I need copies of the complete menu that was served to the cell thath [sic] I was in and the cell next to the one that I was in (on the right facing the cell door from the outside) that house [sic] mostly black men and held Muslims. (Copies of the Muslim meals) during the dates of 7/4/94 through 11/29/94.

Bob Stevens, Jailer for the Boyd County Detention Center, responded to Mr. Dyer's request on December 26, 1996. Mr. Stevens provided Mr. Dyer with the menu for his cell, but withheld the menu for the adjoining cell which housed a group of African-American men, including some Black Muslims. Mr. Stevens stated that “I cannot provide you with menus that pertain to other inmates that requested special meals for religious or medical reasons. This would violate their right to privacy, so disclosure will require a court order per KRS 61.878(1)(a).”

In response to this office's notification of receipt of open records appeal, Phillip Hedrick, Boyd County Attorney, filed an additional response on behalf of the Boyd County Detention Center. In his response, Mr. Hedrick contends that it would constitute a clearly unwarranted invasion of privacy to provide Mr. Dyer, or anyone else, with copies of menus for persons requesting special diets to conform to specific religious beliefs. In addition, Mr. Hedrick argues that even though the menu was not requested for specific individuals, it was requested for persons residing in the same cell as Mr. Dyer. Therefore, Mr. Dyer could easily identify the persons receiving special meals by process of elimination.

In a follow-up letter to this office, Mr. Dyer disputes Mr. Hedrick's argument. Mr. Dyer points out that his original request was for the menu for his cell, which was provided, and for the cell next to his. He contends that he could not identify the persons receiving special diets by viewing the requested menu because those persons were not in his cell. [1]

In addition, he disputes Mr. Hedrick's and Mr. Stevens's position that the requested records fall under KRS 61.878(1)(a), or any other subsection of KRS 61.878.

We are asked to determine if the Boyd County Detention Center properly relied on KRS 61.878(1)(a) in denying that portion of Mr. Dyer's request relating to the Muslim menu for the period of July 4, 1994 through November 29, 1994. For the reasons set forth below, and upon the authorities cited, we conclude that although the Boyd County Detention Center made a good faith argument that the disputed records are exempt pursuant to KRS 61.878(1)(a), its response was both procedurally and substantively deficient.

Before proceeding to the substantive issues in this appeal, we direct the parties' attention to KRS 61.880(1). That provision sets forth guidelines for agency response to an open records request. That statute provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

Although Mr. Stevens responded to Mr. Dyer's request, he did not do so within three business days. We urge Mr. Stevens to review the cited provision to insure that future responses conform to the Open Records Law.

Turning now to the substantive issue in this appeal, we find that based on the privacy analysis articulated by the Kentucky Supreme Court in The Kentucky Board of Examiners v The Courier-Journal and Louisville Times Co., Ky., 826 S.W. 2d 324 (1992), the Boyd County Detention Center improperly relied on KRS 61.878(1)(a) in denying Mr. Dyer access to the Muslim menu for the period of July 4, 1994 through November 29, 1994. In our view, the negligible privacy interest of the prisoners in the food they consume is outweighed by the public's interest in insuring that the Boyd County Detention Center is properly discharging its statutory duties relative to the treatment of prisoners. KRS 71.040.

In The Kentucky Board of Examiners v The Courier-Journal and Louisville Times Co., Ky., 826 S.W. 2d 324 (1992), the Kentucky Supreme Court enunciated a clear test for analyzing the propriety of an agency's invocation of the privacy exception. There the court observed:

[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is `clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.

Board of Examiners, supra at p. 327, 328. Fundamental to this “comparative weighing of antagonistic interests” is the recognition that “the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity.” Board of Examiners, supra at 328. As a result, there is no blanket or per se applicability of KRS 61.878(1)(a) to a given category of records. Our decision in each case must be made by a comparative weighing of the antagonistic interests that exist in the specific situation.

In Board of Examiners, supra, the Supreme Court characterized these “antagonistic interests” as the public's interest in knowing whether its agencies are properly executing their statutory functions and its public servants are serving the public, and the individual's interest in the nondisclosure of records that touch upon the intimate or personal features of his life.

Pursuant to KRS 71.040, the Boyd County Detention Center is statutorily charged with the duty to “furnish [prisoners] with proper food and lodging during their confinement.” Only if the public is afforded access to prisoner menus, including the menus of prisoners with medical or religious dietary restrictions, can it be determined if this duty is being properly discharged. Moreover, if additional funds are expended to provide specialized diets for prisoners, the public is entitled to know what those diets consist of. Accordingly, we believe that the public interest in disclosure is a significant one.

Conversely, the privacy interest of prisoners in the food they consume is relatively insubstantial. This office has previously recognized that “when an individual enters on the public way, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent.” OAG 76-511, p. 4; accord, OAG 81-395, OAG 83-212. Therefore, a prisoner has a reduced expectation of privacy in the records the jail maintains relative to his care and treatment, including menus. Although the particular menus requested might disclose the religious affiliation of inmates, there is nothing in the records before us which indicates that the menus identify which inmates received the meals.

Pursuant to KRS 61.880 (2)(c) and in order to facilitate our review, on January 28, 1997, this office requested that Mr. Hedrick provide us with copies of the records involved in this appeal. We received no response to this request. [2] Accordingly, we have been deprived of the opportunity to conduct an in camera inspection of the disputed records to determine if they contain personally identifiable information.

Inasmuch as Mr. Dyer did not request special menus of inmates sharing his cell, we do not believe that he can identify the particular individuals who were served special meals, and thus determine their religious affiliation. We therefore do not reach the issue of whether records which disclose an inmate's religious practices or beliefs are protected by the privacy exemption. Our analysis is confined to the special menus themselves, and it is our conclusion that the public's interest in insuring that the Boyd County Detention Center fully discharges its duty under KRS 71.040 to furnish prisoners with proper food is superior to the minimal privacy interests of the prisoners in the food they consume while in jail. The Boyd County Detention Center is therefore directed to disclose those records to Mr. Dyer forthwith.

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. Pursuant to KRS61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.

A.B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Mark L. Dyer #086258

Lee Adjustment Center

P.O. Box 900

Beattyville, Kentucky 41311-0900

Bob Stevens, Jailer

Boyd County Detention Center

P.O. Box 455

Catlettsburg, Kentucky 41129

C. Phillip Hedrick

Boyd County Attorney

2800 Louisa Street

P.O. Box 425

Catlettsburg, Kentucky 41129


[1] There is no evidence in the written record from which we can determine the configuration of the cells, i.e., whether Mr. Dyer's view of the adjoining cell was obscured by a wall or whether he had a clear view and could easily identify the prisoners receiving special meals.

[2] In 96-ORD-206, this office observed: We are also constrained to comment on the [public agency's] failure (or refusal) to furnish this office with a copy of the outside consultant's report on the terms set forth at KRS 61.[880](2)(c) and 40 KAR 1:030(3). KRS 61.080(2)(c) provides:(c) On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.40 KAR 1:030(3) also recognizes:. . . 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which the complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall nor disclose them and shall destroy the copies of the time the decision is rendered.Thus, the General Assembly has twice vested the Attorney General with the authority to require production of public records, for which a claim of exemption has been made, for in camera review. Without this authority, the Attorney General's ability to render a reasoned open records decision would be severely impaired. The Attorney General recognizes that he is bound to observe the confidentiality of the records[.] . . . Because he does not have the authority to compel disclosure of the disputed records, his only recourse is to find against the recalcitrant public agency in the hope that the agency will more conscientiously discharge its duties under the Open Records Act in the future.