Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from Eastern Kentucky Correctional Complex's denial of William Abel's June 19, 1996 request for "application and resume, and records regarding any disciplinary action against Officer Tracy Kimmel." Mr. Abel, an inmate at EKCC, also requested access to records relating to strip searches, including body cavity searches, conducted by Officer Kimmel. In an undated response, Records Officer Sandra M. Thompson advised Mr. Abel that his request had been forwarded "to Central Office for review," and that he would receive a final response "within ten working days." On June 24, Mr. Abel was advised that his request was denied pursuant to KRS 197.025. This appeal followed.
We are asked to determine if Eastern Kentucky Correctional Complex violated provisions of KRS 61.870 to 61.884 in responding to Mr. Abel's request. For the reasons set forth below, and upon the authorities cited, we conclude that EKCC's response, although procedurally deficient, was substantively correct.
In 95-ORD-105, and again in 96-ORD-7, this office declared that EKCC violated the Open Records Act by failing to afford inmates timely access to public records. At page 5 of 95-ORD-105, we reasoned:
An inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. Although, as we have recently observed, "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof," an inmate's movements within the facility are presumably restricted, and the manner in which he conducts his financial business dictated by the facility. 94-ORD-90, p. 2; see also, OAGs 79-546; 79-582; 80-641; 82-394; 89-86; 91-129; 92-ORD-1136. Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. This does not, however, authorize a correctional facility to adopt and implement records policies which unreasonably delay access.
The procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. It is incumbent on EKCC to streamline its policies by educating its employees, including caseworkers, on the importance of providing a timely response, as well as timely access to records.
Recognizing that the Attorney General cannot order EKCC, or any other public agency, to implement new policies relative to timely records access, or impose penalties for violations of KRS 61.870 to 61.884, we nevertheless admonished that the courts are so empowered, and urged the correctional facility to bear this in mind. 96-ORD-7, p. 3,4.
Although Mr. Abel ultimately received a formal response from the Department of Corrections within three business days, we believe that EKCC's initial response was procedurally deficient insofar as it postulated a response time of ten business days. We commend the Department for its expeditious handling of Mr. Abel's request, but remind EKCC that "a public agency cannot postpone or delay [the three day] statutory deadline" unless it has properly invoked KRS 61.872(4) or (5). 95-ORD-105, p. 4. "'Timely access' to public records has [thus] been defined as 'any time less than three days from agency receipt of the request.'" 95-ORD-105, p. 4 citing 84-300, p. 3.
Turning to the substantive issues in this appeal, we find that the Department of Corrections properly relied on KRS 197.025(1) in denying Mr. Abel's request. That provision, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l) 1 states:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility under the jurisdiction of the department 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.
The Department explained that disclosure of the records which Mr. Abel seeks would constitute "a threat to the security of other inmates, the institution and/or Mr. Kimmel." Clearly, disclosure of records containing personal information relating to an officer, such as home address, telephone number, social security number, and marital status, as well as records reflecting any disciplinary actions against an officer, could compromise the officer's effectiveness and place him at risk. There can be little doubt that this provision vests the commissioner with broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(l) excludes from public inspection: Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.