26-ORD-171 – Jeremy Brooks/ Kentucky State Penitentiary

Opinion Content:

April 21, 2026

In re: Jeremy Brooks/ Kentucky State Penitentiary

Summary: The Kentucky State Penitentiary (“the Penitentiary”) did
not violate the Open Records Act (“the Act”) when it withheld records
pertaining to a disciplinary report that was not final at the time of the
request, or when it denied a request for a record of which it does not
have possession, custody, or control.

Open Records Decision

Inmate Jeremy Brooks (“the Appellant”) submitted a request to the
Penitentiary for a copy of a disciplinary report resulting from an incident that
occurred while he was incarcerated at the Eastern Kentucky Correctional Complex
(“the Complex”), the appeal “that should be attached to it,” and “all occurrence reports
[and] the EOR” (Extraordinary Occurrence Report) related to the incident. In a timely
response, the Penitentiary denied the request for the disciplinary report under
KRS 61.878(1)(i) and (j) because “it was found to still be pending final agency
action/decision as the Warden has not closed out this report yet.” The Penitentiary
denied the request for the Incident Report Tracking (“IRT”) 1 on the grounds that it
was not the custodian of that record. This appeal followed.

KRS 61.878(1)(i) exempts from disclosure “[p]reliminary drafts, notes, [and]
correspondence with private individuals, other than correspondence which is
intended to give notice of final action of a public agency,” while KRS 61.878(1)(j)
exempts “[p]reliminary recommendations, and preliminary memoranda in which
opinions are expressed or policies formulated or recommended.” The Office has
recognized that a disciplinary report that is not yet final is a preliminary draft under
KRS 61.878(1)(i) and includes preliminary recommendations under KRS 61.878(1)(j).
See 21-ORD-202; see also 23-ORD-022. Further, the Penitentiary points out “that
investigative records, compiled as a result of a complaint, are shielded from disclosure

1 On appeal, the Penitentiary explains that an IRT is the equivalent of an EOR.

by KRS 61.878(1)(i) and (j) as preliminary records” prior to final agency action. See,
e.g., City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658 (Ky.
App. 1982); Ky. State Bd. of Medical Licensure v. Courier-Journal & Louisville Times
Co., 663 S.W.2d 953 (Ky. App. 1983); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App.
2001); see also 23-ORD-009 (holding “that records related to an ongoing investigation
or disciplinary proceeding are preliminary and exempt from inspection”); 25-ORD-
320; 24-ORD-201; 21-ORD-169; 16-ORD-231; 14-ORD-234. Here, the disciplinary
report was not final at the time of the Appellant’s request, while the matter was still
pending. Thus, the Penitentiary did not violate the Act when it denied his request for
a copy of the disciplinary report and appeal, which were compiled as part of the
ongoing disciplinary or investigative process. 2

As to the Appellant’s request for the IRT, the Penitentiary states the Complex,
not the Penitentiary, is the custodian of that record. A public agency “is responsible
only for those records within its own custody or control.” City of Fort Thomas v.
Cincinnati Enquirer, 406 S.W.3d 842, 856 (Ky. 2013) (citing Kissinger v. Reporters
Comm. for Freedom of the Press, 445 U.S. 136 (1980)). Here, the Appellant claims the
Penitentiary can access the records of other correctional facilities digitally through
the Kentucky Offender Management System (“KOMS”). However, “an agency’s
‘access’ to digital records, without more, does not mean that the public agency is the
custodian of such records.” 25-ORD-266; 25-ORD-024; 20-ORD-109. Moreover, as the
Penitentiary points out, the Complex, as the custodian of the IRT, is “in the best
position to decide whether release of the document is appropriate in light of
KRS 197.025(1) . . . with an eye toward the security of the inmates, staff, and the
institution as a whole.” Therefore, the Penitentiary did not violate the Act when it
denied the Appellant’s request for a record not within its possession, custody, or
control.

A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to [email protected].

2 The Penitentiary states the disciplinary report has subsequently become final and may be
requested by the Appellant again.

Russell Coleman
Attorney General

/s/ James M. Herrick
James M. Herrick
Assistant Attorney General

Jeremy Brooks, #222579
Charles B. Bates, Esq.
Nathan Goens, Esq.
Ms. Sara Talarigo
Ms. Ann Smith