Could a Kentucky prison withhold an inmate’s psychological evaluation while giving an incomplete response to his records request?

Plain-English summary

A Kentucky inmate asked for transfer forms, a psychological evaluation and staff documents attached to a detention order. The reformatory supplied transfer forms, withheld the evaluation as “closed,” and said it lacked the detention order. In a 1992 open-records appeal, the Attorney General held that withholding the evaluation was substantively proper under the cited inmate-records provision. Yet the prison’s response was late and failed to name the exemption or explain why it applied. The detention-order answer was also nonresponsive because the inmate had asked for attached staff statements, not the order itself.

After the appeal, the prison said it could not find responsive staff documents. The AG accepted that statement absent clear contrary evidence and treated that part of the dispute as moot. It said the absence should have been stated in the original response.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Inmates requesting their own records

The opinion distinguished the right to receive a proper written response from the right to inspect a particular record. The AG upheld withholding this psychological evaluation under KRS 197.025 as incorporated into the Open Records Act. The prison’s later statement that no attached staff documents could be found resolved that part of the appeal on the record before the AG.

Prison records staff responding to requests

The AG found the written reply untimely under the then-current KRS 61.880(1) and deficient because it did not cite a specific exception with a brief explanation. It also said the reply should have addressed the requested staff statements directly rather than stating only that the detention order was not attached.

Common questions

Did the inmate receive the psychological evaluation?

No. The AG upheld its withholding under the inmate-records provision it quoted, although the prison had failed to cite that ground in its response.

Did the prison’s correct withholding decision excuse its incomplete written reply?

No. The AG separately found the response late and legally insufficient for omitting the exemption and explanation.

What was wrong with the detention-order response?

It addressed whether the file had the detention order; the inmate had requested staff statements and documents attached to it. The prison later said it found no responsive documents, which the AG accepted absent contrary evidence.

Background and statutory framework

The appeal arose under KRS 61.880 after a request for transfer, medical and institutional records. KRS 197.025, incorporated through KRS 61.878(1)(j), supplied the withholding basis for the psychological evaluation in this case. KRS 61.880(1) governed the agency’s written reply. The AG found the prison’s action partly consistent with the Act but its response procedure deficient.

Citations and references

• KRS 61.880(1): response timing and explanation requirements discussed in the opinion.
• KRS 197.025: inmate-records limit applied to the psychological evaluation.
• KRS 61.878(1)(j): incorporated the separate statutory limit into the Open Records Act.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_3a15585e-c3db-4742-b79b-a1b0d917cbd7/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_3a15585e-c3db-4742-b79b-a1b0d917cbd7

Original opinion text

OAG 92-25
February 19, 1992

____
Open Records Appeal
File Identification No. 36
Michael Friend____
Ms. Anna Rankin
Offender Records Officer
Kentucky State Reformatory
3001 W Highway 146
LaGrange, KY 40032
Dear Ms. Rankin:
Mr. Michael Friend, an inmate at the Kentucky State Reformatory, has appealed to the Attorney General’s Office, pursuant to KRS 61.880, your response to his December 11, 1991, request to inspect certain records in his institutional and medical files. Specifically, Mr. Friend requested access to: 1.

All transfer authorization forms authorizing [his] transfer to BCC on 1028-91, to NTC on 11-20-91, and to KSR on 12-5-91.

2.

Dr. Suresh Kodali’s psychological evaluation report of his examination of {Mr. Friend] on 11-22-91.

3.

All staff statements and documents attached to [his] Detention Order at BCC on 11-20-91.

You responded to Mr. Friend’s request on January 2, 1992, providing him with copies of all transfer forms. You denied his request for a copy of his

Ms. Anna Rankin
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OAG 92-25
psychological evaluation, explaining that it was “closed and cannot be released.” Finally you indicated that his file did not contain a copy of the detention order from BCC. In his letter of appeal to this Office, Mr. Friend objects to the failure of KRS to respond to his requests in a timely fashion and to provide an explanation for the nondisclosure of certain records. He asks that we review your response to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that your actions were only partially consistent with the Act. OPINION OF THE ATTORNEY GENERAL Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency’s response to a request under the Act. The 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 records 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. In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General. Your response to Mr. Friend’s request was deficient in at least two respects. Some twelve workdays elapsed between the date of the request and the date of the response. Allowing for delays in the transmission of his request, your response was nevertheless untimely. Additionally, you did not include a statement of the specific exception authorizing nondisclosure of the records and a brief explanation of how the exception applies to the records withheld. You merely state that the psychological evaluations “are closed and cannot be released.” Your response was therefore legally insufficient. OAG 85-89; OAG 87-36. We urge you to review the relevant provisions to insure that future responses conform to the Open Records Act. Turning to the substantive issues raised in this open records appeal, we find that you properly advised Mr. Friend that he could not review the psychological evaluation contained in his medical file. KRS 197.025 provides:

Ms. Anna Rankin
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OAG 92-25
KRS 61.884 and 61.878 to the contrary notwithstanding, 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. This provision, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(j), prohibiting disclosure of records or information made confidential by enactment of the General Assembly, precludes release of psychological evaluations pursuant to Corrections Cabinet policy and procedure. Accordingly, although you failed to cite the specific exception authorizing nondisclosure, you properly withheld Mr. Friend’s psychological evaluation. With respect to Mr. Friend’s request for “[a]ll staff statements and documents attached to my Detention Order at BCC on 11-20-91,” we find that your disposition was nonresponsive. You stated, “There is not a copy of detention order form BCC attached.” Mr. Friend did not request access to the “detention order.” Rather, he requested that he be permitted to review “staff statements and comments attached” to the detention order. While it is abundantly clear that an agency cannot furnish that which it does not have or which does not exist, your response does not indicate that no staff statements or documents could be located in the file. OAG 83-11; OAG 87-36; OAG 877-54; OAG 885; OAG 91-112. In a conversation with the undersigned on January 31, 1992, you stated that after reviewing Mr. Friend’s file, you had been unable to locate any document which would satisfy that portion of his request. This statement should have appeared in your response to Mr. Friend’s open records request. Nevertheless, this Office must accept as truthful, absent clear evidence to the contrary, an agency’s response that records of the type requested do not exist. OAG 86-35; OAG 89-32. We must therefore treat that portion of Mr. Friend’s request as moot. OAG 88-44; OAG 91-112. As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Michael Friend. Both you and Mr. Friend may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5). Sincerely, CHRIS GORMAN ATTORNEY GENERAL

Amye B. Majors
Assistant Attorney General

Ms. Anna Rankin
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OAG 92-25
AMB/jlh
c: Michael Friend