Attorney general: KY Corrections Department is improperly delaying release of records

The Kentucky Department of Corrections has subverted the state’s Open Records Act by seeking “extensive extensions of time” before it releases a year’s worth of internal investigative reports to the Lexington Herald-Leader, the attorney general’s office has ruled.

The commonwealth’s open records law allows public agencies a reasonable period of time to prepare records for release at the earliest possible date. However, agencies undermine the law when they miss their own deadlines, as the Corrections Department did, the attorney general’s office said.

In this case, the Corrections Department said it could not produce 900 pages of records in the month that it originally gave itself, the attorney general’s office said.

“It is not clear why it would take more than 26 business days to gather and review 900 pages of records,” Assistant Attorney General Marc Manley wrote.

“Even if it took the department six business days to ask its correctional facilities to search for and provide responsive records to it, the department could have achieved its deadline in the next 20 business days by reviewing approximately 45 pages per day, or 6 pages per hour, which is certainly not an insurmountable task,” Manley wrote.

Decisions from the attorney general’s office carry the weight of law on open records matters.

On Oct. 19, the Herald-Leader requested reports produced over the past year following internal investigations of employees at the Corrections Department, which runs the state’s prisons and its probation and parole system.

The newspaper in recent years has uncovered employee misconduct inside the Corrections Department’s sister agency, the Department of Juvenile Justice, including excessive use of force on youths, improper sexual behavior and neglect of duties.

Juvenile Justice Commissioner Vicki Reed announced her resignation last month. An independent audit of the state’s juvenile detention centers is due to the General Assembly later this month.

In its written reply to the Herald-Leader, the Corrections Department said it would need until Nov. 30 to locate the responsive records and redact personal or security-related information. The newspaper did not object to the Nov 30 release date.

However, on Nov. 30, the department said it needed more time and provided a new release date of Dec. 21.

On Dec. 21, the department again said it needed more time and provided a new release date of Jan. 4.

The Herald-Leader objected to the initial delay on Nov. 30 and appealed to the attorney general’s office.

In recent years, Kentucky public agencies have grown more defiant about delaying the release of records in hopes that people requesting them simply will give up and go away, said Amye Bensenhaver, co-director of the Kentucky Open Government Coalition, a group that advocates for government transparency.

State lawmakers were concerned enough to amend the open records law in 2021 to clarify that public agencies are guilty of subverting the law when they seek “extensive extensions of time” to comply, Bensenhaver said.

“It’s particularly disturbing in the context of the (Department of Corrections),” she said. “Several years ago, Corrections was admonished by the Kentucky Supreme Court that it ‘should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request.’”

Gov. Andy Beshear’s office declined to comment for this story.

Complying with state law related to the timely release of public documents is not optional, said Richard A. Green, executive editor of the Herald-Leader.

“Taxpayers, residents, and, yes, media sites like the Herald-Leader, are given the right by state law to access and obtain those records maintained by public agencies and employees in a state-determined and reasonable period of time,” Green said. “Thumbing your nose at the law is unacceptable and insulting to taxpayers who fund state agencies and have lofty expectations of their performance..”

The Herald-Leader plays a critical role across our commonwealth as a watchdog for its readers and Kentucky taxpayers and ensuring state government operates the way it should, Green added.

“We take that responsibility seriously. We encourage Gov. Beshear to heed the attorney general’s ruling. It’s time he intervenes and instructs that these records be released now.”