RENDERED: FEBRUARY 14, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0018-MR
COMMONWEALTH OF KENTUCKY, JUSTICE AND PUBLIC SAFETY CABINET, DEPARTMENT OF CORRECTIONS APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 22-CI-00448
DAWN CRAWFORD APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, COMBS, AND A. JONES, JUDGES.
JONES, A., JUDGE: The Appellant, the Commonwealth of Kentucky, Justice and
Public Safety Cabinet, Department of Corrections (“KDOC”), filed this appeal
following the Franklin Circuit Court’s order requiring it to release a specific
section of one of its policies and procedures in response to Dawn Crawford’s Open Records Act (“ORA”) request. Following careful review of the briefs, record, and
all applicable law, we affirm.
I. BACKGROUND
Dawn Crawford’s husband, Marc, a pretrial detainee, died at the
Kentucky State Reformatory (“KSR”) in Lagrange, Kentucky.1 Thereafter, on
February 5, 2022, Dawn submitted a thirty-one-part ORA request for various
records and information to KDOC. KDOC received Dawn’s request on February
15, 2022. When Dawn failed to receive a response from KDOC within the
statutory deadline, she sought review from the Kentucky Office of the Attorney
General (“OAG”).2
After Dawn sought review from the OAG, KDOC submitted an initial
response to Dawn’s ORA request. Therein, KDOC stated that it needed additional
time to complete the request due to the number of records requested and indicated
1 Marc was arrested on May 25, 2017, and transported to the Madison County Detention Center. He was transferred to KSR on May 31, 2017, where he later died on June 24, 2017. In 2018, Crawford initiated a Civil Rights action against KSR and other parties in the United States District Court for the Eastern District of Kentucky, seeking redress for Marc’s death. Crawford v. Tilley et al., Civil Action No. 2018-CV-00623-CHB-MAS. However, the federal court case has no bearing on the ORA issues currently before this Court. Parish v. Petter, 608 S.W.3d 638, 641-42 (Ky. App. 2020) (“[T]he processes under the ORA and the Civil Rules are not mutually exclusive. Furthermore, we find no authority suggesting that the election of one remedy would necessary [sic] exclude resort to the other.”).
2 A public agency has five business days to fulfill a request for public records or deny such request and explain why. Kentucky Revised Statutes (“KRS”) 61.880(1); KRS 197.025(7). KDOC admitted that it did not respond to Dawn’s ORA request within the statutory time frame. -2- that it would issue a final response by March 11, 2022. On that date, KDOC issued
its final response, granting the request in part and denying it in part.3 As related to
this appeal, KDOC did not provide any documents responsive to Dawn’s request
for the policy and procedure governing investigation of inmate deaths at KRS in
2017. KDOC originally claimed that there was no specific policy and procedure
for investigating inmate deaths in place at that time. However, it was later
determined that inmate deaths were mentioned in Kentucky Corrections Policies
and Procedures (“CPP”) 8.3, Critical Incident Management.4 KDOC withheld
production of CPP 8.3 pursuant to KRS 197.025(1) & (6) claiming that it was a
“secured policy,” and its release would pose a security threat.
Because KDOC did not initially explain how a policy concerning the
conduct of an investigation “address[es] the security and control of inmates and
penitentiaries” within the meaning of KRS 197.025(6), or how the disclosure of
this policy poses a security threat under KRS 197.025(1), the OAG requested
KDOC to provide a copy of CPP 8.3 for its in camera review. The OAG
determined that certain portions of CPP 8.3, particularly those dealing with
procedures for responding to disturbances or disasters within the prison, could pose
3 Ultimately, KDOC produced 617 pages of responsive records.
4 Two different versions of CPP 8.3 were actually in effect during the relevant time period. Our analysis applies equally to both versions, and we refer to CPP 8.3 in the singular for simplicity’s sake.
-3- a threat to institutional security if released. However, the OAG did not believe that
release of CPP 8.3 Section II(M), which merely addresses the procedure for
reviewing critical incidents after the fact, would constitute a threat. Citing KRS
61.878(4)5, the OAG determined that KDOC violated the ORA when it withheld
the CPP in its entirety instead of separating out the excepted information and
providing the nonexcepted information. Ky. Op. Atty. Gen. 22-ORD-088.
KDOC then filed an original action with the Franklin Circuit Court
challenging the OAG’s determination. Before the circuit court, KDOC argued that
the Commissioner has the final say on whether records should be withheld under
KRS 197.025(1) and the Commissioner’s decisions regarding which records pose a
threat to institutional safety and security are not reviewable by either the OAG or
the circuit court. KDOC also asserted that KRS 197.025(6) excepts the entire CPP
and trumps KRS 61.878(4).
After reviewing the applicable statutory authority, the circuit court
held that KRS 197.025 does not vest sole authority in the Commissioner to
determine whether disclosure of a responsive record would pose “a threat to the
security of the inmate, any other inmates, correctional staff, the institution or any
other person.” While the circuit court agreed that the Commissioner had the
5 This section provides: “If any public record contains material which is not excepted under this section, the public agency shall separate the excepted [material] and make the nonexcepted material available for examination.” KRS 61.878(4). -4- discretion to make the initial determination, it reasoned that KRS 197.025 plainly
takes the ORA into consideration, and under the ORA, denial of access to a
responsive record or failure to respond to a request permits the requester the right
to seek review of the denial or failure to respond from the OAG. After conducting
its own in camera examination of CPP 8.3, the circuit court agreed with the OAG
that CPP 8.3 Section II(M) does not “address the security and control of inmates
and penitentiaries,” KRS 197.025(6), and accordingly, release of such information
would not “constitute a threat to the security of the inmate, any other inmate,
correctional staff, the institution, or any other person.” KRS 197.025(1). Then,
like the OAG, the circuit court determined that KDOC violated the ORA when it
withheld the entirety of CPP 8.3 instead of separating the excepted portions and
providing the nonexcepted portions. This appeal by KDOC followed.
II. ANALYSIS
Although Kentucky’s ORA has been amended several times since its
original enactment in 1976, its objective of providing the people with a mechanism
to inform themselves about the business of their Government has remained
steadfast. Its purpose today is the same as it was in 1976, to provide the public
access to information about their Government “even though such examination may
[at times] cause inconvenience or embarrassment to public officials or others.”
KRS 61.871.
-5- While the purpose behind the ORA might be abstract, the rights it
bestows on the public are “real, direct, present and substantial[.]” Taylor v.
Barlow, 378 S.W.3d 322, 326 (Ky. App. 2012). It bestows on the people of this
Commonwealth, the right to inform themselves about “what their government is up
to.” Lawson v. Office of Atty. Gen., 415 S.W.3d 59, 73 (Ky. 2013) (quoting U.S.
Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773, 109
S. Ct. 1468, 1481, 103 L. Ed. 2d 774 (1989)).
Overall, the [ORA] demonstrates a general bias favoring disclosure.”
Hardin Cnty. Schools v. Foster, 40 S.W.3d 865, 868 (Ky. 2001) (citing Kentucky
Bd. of Exam’r of Psychologists v. Courier-Journal, 826 S.W.2d 324 (Ky. 1992)).
Under the ORA, “records that are open are open to ‘any person’ for any purpose.”
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 85-86 (Ky. 2013).
While there are exceptions to disclosure of some public information, those
exceptions are to be strictly construed. See KRS 61.871. Additionally, if a public
record contains both excepted and nonexcepted material, KRS 61.878(4) requires
the public agency to “separate the excepted [material] and make the nonexcepted
material available for examination.”
After receiving an ORA request from a Kentucky resident, the
agency at issue “shall determine within five (5) days, excepting Saturdays,
Sundays, and legal holidays, after the receipt of any such request whether to
-6- comply with the request and shall notify in writing the person making the request,
within the five (5) day period of its decision.” KRS 61.880(1). “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.” Id.
In City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848
(Ky. 2013), the Kentucky Supreme Court outlined the options available to
individuals when the public agency has denied or failed to answer an ORA request.
[W]hen an agency denies an ORA request, the requester has two ways to challenge the denial. He or she may, under KRS 61.882, file an original action in the Circuit Court seeking injunctive and/or other appropriate relief. Alternatively, under KRS 61.880, he or she may, as was done in this case, ask the Attorney General to review the matter. Once the Attorney General renders a decision either party then has thirty days within which to bring an action pursuant to KRS 61.882(3) in the Circuit Court. Although the statutes refer to this second type of Circuit Court proceeding as an “appeal” of the Attorney General’s decision, it is an “appeal” only in the sense that if a Circuit Court action is not filed within the thirty-day limitations period, the Attorney General’s decision becomes binding on the parties and enforceable in court. Otherwise, this second sort of Circuit Court proceeding is an original action just like the first sort. KRS 61.880(5)(a) (The appeal is to be treated “as if it were an action brought under KRS 61.882.”).
Id. at 848.
-7- Importantly, the circuit court is not bound by the prior OAG opinion
in any way or limited to the OAG’s evidentiary record. KRS 61.882(3). The
burden of proof in an ORA circuit court action is on the agency from which the
records are sought. Cabinet for Health and Family Serv. v. Lexington H-L Serv.,
Inc., 382 S.W.3d 875, 883 (Ky. App. 2012). The agency must prove that its
decision to withhold documents from the requesting party is justified under the
terms of the ORA. City of Fort Thomas, 406 S.W.3d at 848.
On appeal, we review the circuit court’s factual findings for clear
error, and issues concerning the construction of the ORA and any other purely legal
matters, such as the construction and application of statutes, de novo. Pearce v.
Univ. of Louisville, by & through its Bd. of Trustees, 448 S.W.3d 746, 749 (Ky.
2014).
KRS 61.878(l) excludes “[p]ublic records or information the
disclosure of which is prohibited or restricted or otherwise made confidential by
enactment of the General Assembly[.]” Of relevance, KRS 197.025(1) and (6)
provide:
(1) KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
... -8- (6) The policies and procedures or administrative regulations of the department which address the security and control of inmates and penitentiaries shall not be accessible to the public or inmates. The Administrative Regulations Review Subcommittee’s review process for any of these policies and procedures or administrative regulations, which may be filed with the regulations compiler, shall be conducted in closed sessions and held confidential.
Id.
KDOC argues that CPP 8.3 is entirely exempt from disclosure under
the combined operation of KRS 197.025(1) and (6). KDOC asserts that under
subsection (1), the Commissioner has the authority to determine whether a record’s
release constitutes a security threat, and the Commissioner has determined that
CPP 8.3 relates to the security and control of inmates and institutions. It maintains
that consequently, under subsection (6), policies addressing such security matters
are categorically exempt from public access. KDOC further contends that KRS
61.878(4), which requires agencies to redact and disclose nonexempt portions of
public records, does not apply to secured policies under KRS 197.025(6).
When construing a statute, our objective is to determine the
legislature’s intent in enacting the legislation. Pearce, 448 S.W.3d at 749. “To
determine legislative intent, we look first to the language of the statute, giving the
words their plain and ordinary meaning.” Id. (quoting Richardson v.
Louisville/Jefferson County Metro Government, 260 S.W.3d 777, 779 (Ky. 2008)).
-9- Importantly, “[w]e presume that the General Assembly intended for the statute to
be construed as a whole, for all of its parts to have meaning, and for it to
harmonize with related statutes. We also presume that the General Assembly did
not intend an absurd statute or an unconstitutional one.” Shively Police
Department v. Courier Journal, Inc., ___ S.W.3d ___, 2023-SC-0033-DG, 2024
WL 4310555, at *6 (Ky. Sep. 26, 2024) (quoting Shawnee Telecom Res., Inc. v.
Brown, 354 S.W.3d 542, 551 (Ky. 2011)).
Even though it was decided under a different exemption, we find
University of Kentucky v. Kernel Press, Inc., 620 S.W.3d 43 (Ky. 2021),
instructive with respect to the interplay between the ORA and KRS 197.025. In
Kernel Press, the University of Kentucky, in response to an ORA request, withheld
an investigatory file pertaining to a former professor who had been accused of
sexual assault by two graduate students. The University claimed that the entire file
was exempt from ORA disclosure as an “education record” under the Family
Education Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g.6 The trial court
held that the University was justified in withholding the entire file because it
related to charges made by two students and thereby was properly classified as an
exempt educational record under FERPA. Our Court reversed and held the entire
6 KRS 61.878(1)(k) excludes from the ORA “[a]ll public records or information the disclosure of which is prohibited by federal law or regulation or state law.” In this way, it operates much like KRS 61.878(1)(l). -10- file should not have been withheld as an educational record. The Kentucky
Supreme Court accepted discretionary review noting that the case provided it an
opportunity “to reiterate the ORA obligations of a state agency[.]” Id. at 52.
The Kentucky Supreme Court then explained that, at the crux of the
case, “is the interaction of Kentucky’s ORA, a statutory scheme that allows public
access to records maintained by public agencies such as the University, and
FERPA, a federal statute that prohibits the disclosure of a student’s educational
records without their consent.”7 Id. After observing that the ORA exemptions are
to be narrowly construed, the Court held that even if certain documents qualified as
educational records, the University had a duty to review the documents and
produce them in a redacted form where possible. Id. at 58. The Court also held
that the University did not have the final say regarding “what public records must
be disclosed and what records can lawfully be withheld” as such decisions “are
ultimately for the courts within the parameters of the ORA.” Id. at 62.
The plain language of KRS 197.025(6) indicates that it is aimed at
protecting institutional security and only excepts from public disclosure those
policies and procedures that deal with “the security and control of inmates and
penitentiaries.” Insomuch as CPP 8.3 specifically relates to the security and
7 By the same token, the crux of this case is the interplay between the ORA and KRS 197.025, which places certain restrictions on access to inmate and facility records and penitentiary policies and procedures. -11- control of inmates and penitentiaries, it is exempt from public disclosure under the
ORA. However, it would violate the spirit of transparency behind the ORA to
interpret this section as cloaking entire policies and procedures in secrecy. Rather,
consistent with Commonwealth v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008), we
hold that KDOC must undertake a “winnowing process” to “separate materials
exempted from disclosure in a document from materials that are subject to
disclosure.” Id. at 665-66 (“[I]t is clear to us that the prospect of a public agency’s
potentially negligent disclosure of protected items is simply an insufficient reason
to thwart the openness the General Assembly sought to achieve when it enacted the
Open Records Act.” ); see also Ky. Op. Atty. Gen. 05-ORD-055 (“KRS
197.025(6) merely establishes beyond cavil that policies and procedures, as well as
administrative regulations, relating to security and control of inmates and
penitentiaries are inaccessible to inmates and the public. It does not establish an
exception to the general rule of nondisclosure for all other policies and procedures
maintained by jails or correctional facilities.”).
This brings us to KDOC’s second argument that, pursuant to KRS
197.025(1), the Commissioner’s decision that release of the CPP poses a threat is
not reviewable. While KRS 197.025(1) grants the KDOC Commissioner
discretion to withhold records if their disclosure poses a threat to institutional
security, we cannot accept that the Commissioner’s decision is unreviewable.
-12- KRS 197.025(1) operates within the broader procedural framework of the ORA.
The ORA provides a structured process for evaluating whether records should be
disclosed, including the opportunity for OAG and judicial review. This framework
ensures that exemptions claimed under KRS 197.025(1) are applied appropriately
and do not unduly obstruct the public’s right to access non-exempt information.
As the Kentucky Supreme Court has explained, the best way to uphold the ORA’s
overriding purposes of transparency and accountability is to ensure that the
complaining party has a meaningful opportunity to “disprove a public agency’s”
proffered reasons for withholding its records. Bowling v. Lexington-Fayette Urban
Cnty. Government, 172 S.W.3d 333, 341 (Ky. 2005).
Without question, KRS 197.025(1) grants the KDOC Commissioner
broad discretion to determine whether a record’s disclosure constitutes a security
threat. Likewise, we recognize that the KDOC Commissioner is uniquely
positioned to evaluate the operational and safety concerns of correctional
institutions. The OAG and courts should, therefore, afford the KDOC
Commissioner’s determinations a substantial amount of deference. Hopkins v.
Smith, 592 S.W.3d 319, 322 (Ky. App. 2019) (“[A] highly deferential standard of
judicial review is constitutionally appropriate with respect to . . . the construction
of prison regulations.”). However, the KDOC Commissioner’s discretion is not
absolute and does not foreclose judicial oversight entirely.
-13- The ORA grants the OAG and the courts of justice the authority to
review denials of records requests, and this authority remains critical for ensuring
that the KDOC Commissioner’s determinations are made in compliance with legal
and procedural standards. The role of procedural review is not to second-guess the
Commissioner’s substantive assessments of security risks but to ensure: (1) the
Commissioner’s decisions are made in good faith and based on legitimate security
concerns; (2) the Commissioner followed the proper statutory procedures in
making and communicating the determinations; and (3) the Commissioner’s
determinations are not arbitrary, capricious, or lacking a reasonable basis.
Like the circuit court, we take the safety and security of Kentucky’s
correctional institutions seriously. Likewise, we understand that the Commissioner
possesses expertise and experience in matters of institutional safety and security
that the courts lack. However, this does not insulate the Commissioner’s decisions
from all review. Certainly, though, in matters where the question is debatable, we
should defer to the Commissioner’s judgment.
We have undertaken a review of CPP 8.3. Like the OAG and the
circuit court, we agree with KDOC that the vast majority of the CPP implicates
institutional security and deals with security and control of inmates making it
exempt from public disclosure. However, CPP 8.3 Section II(M) does not. This
section deals only the internal review and investigation of critical incidents after
-14- the fact. Having reviewed CPP 8.3 Section II(M), we cannot see how this CPP
presents a debatable issue. It merely addresses the procedures for reviewing
critical incidents. We cannot appreciate any reasonable basis on which to conclude
that release of that particular CPP section would jeopardize institutional or
individual safety and security. Accordingly, we agree with the circuit court that
the KDOC abused its discretion when it did not produce CPP 8.3 Section II(M) in
response to Crawford’s ORA request.
Regrettably, we must address one final issue. During oral argument,
KDOC’s counsel asserted – for the first time on appeal – that KRS 197.025(1), a
statute heavily relied upon in both its appellant’s brief and reply, was ultimately of
no consequence in this case. Counsel explained that 501 KAR8 6:999, a secured
regulation inaccessible to both the Court and Crawford, designated CPP 8.3 as a
secured regulation in its entirety and was therefore exempt from disclosure under
KRS 197.025(6). Although KDOC’s counsel stated that the regulation had been
cited in the circuit court, counsel also admitted that it was not included in the
appeal prior to oral argument. Upon further questioning, counsel acknowledged
that it now considered 501 KAR 6:999 the linchpin of this appeal. Following oral
argument, and out of an abundance of caution, the Court ordered KDOC to file a
8 Kentucky Administrative Regulations. -15- copy of 501 KAR 6:999 under seal and granted Crawford the opportunity to
respond to KDOC’s belated reliance on the regulation.
KDOC should not be permitted to rely on a regulation that the Court
could not discover through ordinary legal research and that it failed to raise until
oral argument – particularly when the regulation fundamentally altered the nature
of KDOC’s argument. Allowing such a tactic disrupts the orderly briefing process,
which is essential to a fair and efficient appellate review. The purpose of oral
argument is to provide the Court with an opportunity to ask questions about issues
already briefed by the parties, not to serve as a forum for injecting new arguments
at the eleventh hour.
Moreover, KDOC never filed a motion for leave to cite supplemental
authority, as required by our appellate rules when a party wishes to introduce a
new legal basis not included in its briefing. Specifically, RAP9 35(B) provides:
A party may file a motion for leave to cite supplemental authority decided before its final brief was filed only for good cause shown. Such a motion shall attach the supplemental authority and, in 400 words or less (excluding caption, signature block, and certificate of service) describe how the supplemental authority pertains to the appeal at hand and why it was not cited in the party’s brief. Other parties to the appeal may file a response with the same word limit.
(Emphasis added.)
9 Kentucky Rules of Appellate Procedure. -16- To date, KDOC has failed to offer an acceptable reason for its failure
to cite the regulation during briefing.10 Given these procedural violations, this
Court deems any arguments concerning the newly introduced regulation waived,
and we decline to consider them.11 Catron v. Citizens Union Bank, 229 S.W.3d 54,
59 (Ky. App. 2006) (refusing to consider issues that were not timely raised in
appellant’s main brief); McBrearty v. Kentucky Community and Tech. College
System, 262 S.W.3d 205, 210, n.7 (Ky. App. 2008) (“[W]e uphold the trial court’s
determination of those issues that were not briefed on appeal.”).
III. CONCLUSION
For the foregoing reasons, we affirm the order of the Franklin Circuit
Court.
ALL CONCUR.
10 During oral argument, KDOC’s counsel acknowledged that he was not the same attorney who authored KDOC’s brief and was therefore unsure why the regulation was not included. While we appreciate counsel’s candor, this explanation does not constitute “good cause” for failing to raise the issue in a timely manner. 11 In Milby v. Mears, 580 S.W.2d 724, 728 (Ky. App. 1979), we held that: “The reply brief is not a device for raising new issues which are essential to the success of the appeal.” Certainly, if it is not appropriate to raise such issues in a reply brief, oral argument is a particularly inopportune time to do so. See also McGuire v. Commonwealth, 595 S.W.3d 90, 95 n.19 (Ky. 2019).
-17- BRIEFS FOR APPELLANT: BRIEF AND ORAL ARGUMENT FOR APPELLEE: Jonathan Gifford Frankfort, Kentucky Jessica Winters Lexington, Kentucky
ORAL ARGUMENT FOR APPELLANT:
Peter Ervin Frankfort, Kentucky
-18-