NOT TO BE PUBLISHED
April 22, 1997
In re: Mark Turner/Lee Adjustment Center
Open Records Decision
This matter comes to the Attorney General as an appeal by Mark Turner in connection with his request for access to various documents in the custody of the Lee Adjustment Center.
In a request form, dated February 27, 1997, Mark Turner requested four categories of documents including "#1; Vendors list; of all vendors delivering to inmate canteen. #2; Invoice priceing [sic] list for goods delivered for each vendor."
Lisa Hall, the Custodian of Records, replied to Mr. Turner on behalf of the Lee Adjustment Center, in a document dated March 11, 1997, and advised him in part that, "Per General Counsel of the Department of Corrections items #1 & #2 are not available for inspection under KRS 197.510 subsection 7. The private provider could be at a disadvantage if disclosed."
In his letter of appeal to the Attorney General Mr. Turner said in part that after reviewing KRS 61.870 through KRS 61.884 he can find no reason for these records not to be released.
KRS 61.880(1) in part sets forth the duties and obligations of a public agency or an agency subject to the provisions of the Open Records Act relative to a request for access to agency records.
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 court, in Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996), said in part relative to the requirements of KRS 61.880(1):
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
The court disagreed with the public official that his limited and perfunctory response to the request even remotely complied with the requirements of the Open Records Act.
While the prisons response was limited and perfunctory, it did at least cite a statutory provision to support the part of the request which was denied. KRS 197.510, dealing with a private provider of a prison facility, states as follows in subsection (7):
The private provider shall develop and implement a plan for the dissemination of information about the adult correctional facility to the public, government agencies, and the media. The plan shall be made available to all persons. All documents and records, except financial records, maintained by the private provider shall be deemed public records as defined by KRS 61.970 and be subject to the provisions of KRS 61.872 to 61.884.
In connection with the exceptions to the inspection of public records, KRS 61.878(1)(l) provides that the following category of public records can be withheld from public inspection: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
This office, in 94-ORD-27, copy enclosed, concluded in part that information relating to canteen operations at the Lee and Marion Adjustment Centers, operated by private providers of prison facilities, was properly denied pursuant to KRS 61.878(1)(k) (now codified as KRS 61.878(1)(l)) and KRS 197.510(7).
Thus the prison, operated by a private provider and subject, generally, to the Open Records Act, was legally justified pursuant to KRS 197.510(7) and KRS 61.878(1)(l) in withholding financial records relative to the operation of the prison canteen.
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 KRS 61.880(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
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been distributed to:
Mark Turner #121914
Eastern Kentucky Correctional Complex
P.O. Box 636
West Liberty, KY 41472
Custodian of Records
Lee Adjustment Center
P.O. Box 900
Beattyville, KY 41311
Office of General Counsel
Department of Corrections
State Office Building, 5th Floor
Frankfort, KY 40601
2500 7th Street
Louisville, KY 40208