Could a Kentucky prison officer deny an inmate's records request after the records custodian said the reports would be available later?

Plain-English summary

An inmate sought incident and officer reports about a disciplinary charge at Kentucky State Penitentiary. The offender records specialist, acting as records custodian, promptly explained that the reports had not reached her office and that the inmate needed authorization for copying costs. A lieutenant then issued a separate memorandum denying the reports on security grounds. The Attorney General concluded that the custodian's response complied with the Open Records Act, while the lieutenant's denial had no legal effect because it was not issued by the custodian or under her authority. With no valid denial, the appeal was premature.

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 seeking prison records

The AG distinguished a delayed but affirmative response from an actual denial. The records specialist said the reports were not yet in her office and gave an expected arrival period. Because the lieutenant's later memorandum was unauthorized, it did not supply the final agency denial needed for the AG to review the appeal. The opinion said Thurman could obtain the copying authorization described by the specialist to receive the requested material.

Prison records custodians and staff

The opinion treated the offender records specialist as the official custodian. Under the statute quoted in the opinion, a denial had to identify the applicable exception and explain its application, and had to be issued by the custodian or under her authority. The AG urged the prison to review its records policy so staff recognized the custodian's role.

Common questions

Did the records custodian deny the inmate's request?

No. She said the reports were not yet available in her office, estimated when they might arrive, and described the authorization needed for copying costs. The AG found her response consistent with the Act.

Could the lieutenant's security memorandum serve as the prison's final denial?

The AG said no. The memorandum was not issued by the official custodian or under her authority, so it was a nullity under the statutory procedure the opinion applied.

Why did the AG decline to review the claimed security reason for withholding the reports?

There was no valid agency denial to review. The AG therefore found the inmate's appeal unripe, without deciding whether the lieutenant's asserted security concern justified withholding any report.

Background and statutory framework

Thurman requested reports about a December 1991 incident that led to a contraband disciplinary charge. The custodian answered the request the day it arrived. The opinion quoted KRS 61.880(1) for the then-applicable response and denial procedure and KRS 61.872(4) for records temporarily unavailable or in storage. It also identified KRS 61.880(5) as the route for either side to challenge the AG opinion in circuit court.

Citations and references

• KRS 61.880(1): the agency response and custodian-authority requirement quoted in the opinion.
• KRS 61.872(4): notice and timing when requested records are not immediately available.
• KRS 61.880(5): circuit-court challenge provision cited by the AG.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_c2140f20-37ad-4e51-9842-4ca53c51cdb0/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_c2140f20-37ad-4e51-9842-4ca53c51cdb0

Original opinion text

OAG 92-31
February 25, 1992

______
Open Records Appeal
File Identification No. 87
Brian Thurman______
Ms. Betty Stuart
Offender Records Specialist
Kentucky State Penitentiary
Eddyville, KY 42038-0128
Dear Ms. Stuart:
Mr. Brian Thurman, an inmate at Kentucky State Penitentiary (KSP), has appealed to the Attorney General, pursuant to KRS 61.880, KSP’s denial of his request to inspect all incident reports and officers’ reports arising out of an occurrence on December 27, 1991. On that date, Mr. Thurman was charged with "possession of dangerous contraband," when officers discovered that he had concealed an "institutional sticker," or handmade knife, in his left sock. He was subsequently found guilty and assessed a penalty of ninety days in disciplinary segregation. Mr. Thurman submitted his request to the Inmate Records Office on January 9, 1992. You responded on the same day, advising him as follows: You will need to ask your caseworker for a ‘proper’ C.P.O. Requested material is not yet present on institutional file. It takes anywhere from 2-3 weeks (from date of incident report) for it to get to this office. It could take longer when G.T. is taken.

Although it was your apparent intent to release the records, on January 10, 1992, Lt. H. Mayfield issued a memorandum to Mr. Thurman in which he stated: Your request for officer reports, etc., is denied based on the following:

1. You were found guilty based on the facts stated and witnessed in your incident report.
2. Information contained in the staff reports are confidential since they contain information
   which could jeopardize the security of this institution.
   Thus, you were pre-empted in the discharge of your duties as offender records specialist by Lt. Mayfield. In his letter of appeal to this Office, Mr. Thurman notes that KSP "did not follow correct procedure in denying [his] request . . . [since he cannot locate any] exemption that applies." He asks that this Office review KSP’s actions to determine if said actions were consistent with the Open Records Act. For the reason set forth below, we conclude that KSP’s actions were only partially consistent with the Open Records Act. OPINION OF THE ATTORNEY GENERAL KRS 61.880(1) 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. Any 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. As official custodian of records, you promptly responded to Mr. Thurman’s request, advising him that he should obtain a "C.P.O.," authorizing payment from his inmate account for copying costs. Pursuant to KRS 61.872(4), you further advised him that although the requested records were not immediately available, they should arrive in your office in two to three weeks. KRS 61.872(4) provides: If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. Thus, your actions as custodian were entirely consistent with the Open Records Act. Lt. Mayfield’s denial does not constitute final agency action inasmuch as it was not "issued by the official custodian or under [her] authority." Accordingly, his January 10, 1992, memorandum is a nullity. No denial having been issued, this appeal is not ripe for review by the Attorney General. Mr. Thurman need only obtain the C.P.O., per your instructions, in order to secure the requested documents. We urge KSP to review its existing open records policy. KRS 61.870, et. seq., contemplates the appointment of an official custodian of records to whom all requests are directed for proper disposition. It is imperative that every employee of KSP acknowledges the authority of the offender records specialist in handling these requests. As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Brian Thurman. Both KSP and Mr. Thurman 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
ABM/jlh
c:

Brian Thurman
Jean Morse
Offender Records Administrator
Kentucky State Penitentiary
Deputy Warden Patty Webb
Kentucky State Penitentiary
Susan Alley
Corrections Cabinet