Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Department of Corrections's denial of Mr. Reneer's open records requests to inspect certain of the Department's records. By requests dated July 18, 1996, Mr. Reneer made three separate open records requests to the Department to inspect the following documents:
1. The contract, agreement, and other record of every type and description reflecting or referring to the total services which Dr. Ameji is expected to provide to inmates and/or staff at EKCC, and 2. the record reflecting the amount of money paid to Dr. Ameji for those services.
2. The record reflecting the method of calculating the amount of money which private prison providers must pay to EKCC, the Department of Corrections, or any staff member thereof, for services rendered to the private provider by Dr. Ameji.
3. The license, contract, Kentucky Administrative Regulation, CPP, Medical Canon, and other record of every type and description which provides authorization which permits any EKCC or Corrections staff member of department to receive or accept payment for providing medical services to private prison providers, including payment for services provided to the private prison concern by Dr. Ameji.
On July 25, 1996, Ms. Linda Hill, Custodian of Records, EKCC, denied each request pursuant to KRS 197.510(7), without explanation as to how the statute applied to the records withheld.
In his letters of appeal, Mr. Reneer asks this office to decide whether these denials were in violation of the Open Records Act. Because the three requests were presented on the same day to the same agency, this office will treat and address the issues raised in the three appeals in one decision.
After receipt of the letters of appeal, Ms. Tamela Biggs, Staff Attorney, Department of Corrections, as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, provided this office with a written response to the issues raised in these appeals. In her response, Ms. Biggs, in addressing the issues raised in the order set out above, states in relevant part:
The first request regarding a copy of the contract, etc. reflecting the services Dr. Ameji is expected to provide inmates and/or staff and the amount of money paid for said services, was inadvertently missed in responses. Please note, however, that Dr. Ameji is a state employee, therefore, Corrections is unable to provide a copy of an "employment contract. " The salary portion of the request should have been denied pursuant to KRS 197.025. Following discussions with the wardens and members of Central Office staff, Corrections does not divulge an employee's salary information. Due to the nature of our business and its inherent security concerns, the release of certain employee information may constitute a threat to the security of the institution or institutional staff.
The second request was for the record reflecting the method of calculating the amount which the private prison providers must pay EKCC or Corrections for Mr. Ameji's services. EKCC staff conferred with Warden O'Dea and Central Office to determine the correct response to this request. KRS 197.510(7) states that all documents and records, except financial records, shall be deemed public records. We interpret that section to preclude the disclosure of our copy of any such document. To require Corrections to disclose a copy of a document which is exempt while in the possession of the private provider, defeats the purpose of KRS 197.510(7). A private provider would be wary of entering into any type of financial arrangement with a state entity if mere possession of a copy of such agreement would suddenly make the document "public" due to its physical location. . . .
The third request is similar to the previous request regarding payment for medical services to private providers, including payment for services Dr. Ameji provided to said facilities. The same statutory reference and rationale should have been given in response to this request. Again, due to a miscalculation, a full denial was not given.
For the reasons which follow, we conclude that the responses of the Department were consistent in part and inconsistent in part with the Open Records Act. We address the appeals in the order set out above.
In the first appeal, the Department denied Mr. Reneer's request to inspect Dr. Ameji's employment contract on the basis that he was a state employee and, therefore, it was unable to provide a copy of an "employment contract. " This response is somewhat unclear. If there is no such document, the agency obviously cannot produce a record that does not exist or which it does not have. If there is a record reflecting the services Dr. Ameji is expected to provide under his employment, it should be made available for his inspection.
The second record requested in the first appeal was a record reflecting Dr. Ameji's salary. The Department denied access to this record pursuant to KRS 197.025. Subsection one of that statute provides:
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 person.
This statute is broad in scope and vests the department with a great deal of discretion in the release of records maintained at its facilities. However, this exercise of discretion is not unfettered. 96-ORD-179. There must be some brief explanation as to how release of the requested records would constitute a threat to the institution or institutional staff. This is particularly true when the requested record, such as the salary of a state employee, is normally not considered confidential and has been held in the past to be an open record. OAG 81-98; OAG 79-546.
Such brief explanations have been given by the department in other open records appeals involving KRS 197.025. In 94-ORD-40, this office upheld the decision of the warden to withhold the release of invoices involving the inmate canteen which would indicate the prices paid for various items to a requesting inmate. In relying on KRS 197.025, the department stated that factors such as the inmate's criminal record, his previous acts of defrauding persons and firms, and his knowledge of computers led it to the conclusion that release of the invoices would constitute a threat to any company or person named in the material. In OAG 92-26, this office upheld the Correction Cabinet's denial of an inmate's request to inspect all transfer recommendation and authorization forms in his institutional file. In explaining its denial, the Cabinet explained that in many instances, the transfer forms may refer to conflicts with other inmates and that release of such information could compromise the security of the facility.In 96-ORD-179, this office held that the Corrections Cabinet properly relied on KRS 197.025 in denying an inmate's request to inspect agency records relating to a certain corrections officer, such as his application, resume, any disciplinary actions against him, and any records relating to strip searches conducted by that officer. The Cabinet explained that disclosure of the records sought by the inmate would constitute a threat to the security of other inmates, the institution, and the named corrections officer. In concluding that it was clear from the nature of the records involved that the release of the requested records would constitute a threat to security of the institution and institutional staff, we stated in relevant part:
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.
In the instant case, the department explained that due to the nature of the corrections business and its inherent security concerns, the release of certain employee information may constitute a threat to the security of the institution or institutional staff. Release of employee information of the personal nature mentioned in 96-ORD-179 above clearly represents an invasion of personal privacy and could obviously place the prison employee or the institution at risk. This office gives considerable deference to the department and is reluctant to second guess its exercise of that discretion. However, release of a state employee's salary has consistently been held to be a public record. The department offers no explanation how the release of an otherwise generally recognized open public record (a public employee's salary) constitutes a threat to either the employee or the institution. Absent such an explanation, we conclude the department improperly withheld the record reflecting the employee's salary.
In the second appeal, the department, relying on KRS 197.510(7), denied Mr. Reneer's request to inspect the record which would reflect the method of calculating the amount that private providers must pay the department for services rendered to the providers by Dr. Ameji. KRS 197.510(7) provides that all records, except financial records, maintained by a private provider are deemed public records and subject to the Open Records Act. The department acknowledges that it has a copy of the requested record. However, it argues that the requested document is a copy of a financial record of a private provider which is exempt from disclosure under KRS 197.510(7), and that section precludes the disclosure of the agency's copy of that record. The department contends that to require it to disclose its copy, which is exempt from disclosure while in the possession of the private provider, would defeat the exemption authorized by KRS 197.510(7).
We have previously stated that if records of a private entity are in the possession of or retained by a public agency, they are, in general, subject to inspection. OAG 91-70. See KRS 61.870(2) (public records include those "in possession of or retained by a public agency" ); OAG 89-7. However, in this instance, the requested record, which the agency has a copy of, is exempt from disclosure under KRS 197.510(7). Accordingly, we agree with the department that to disclose this record would defeat the purpose and direction of that statute and conclude the record was properly withheld from disclosure.
In the third appeal, the department denied Mr. Reneer's request to inspect records of every type and description which provide authorization for any department staff member or the department to receive payment for providing medical services to private prison providers, including payment for services provided to the private prison concern by Dr. Ameji.
In response to the issue raised in the third appeal, the department views this request as similar to Mr. Reneer's request in the second appeal above, as a request for records regarding payment for medical services to a private prison provider which are exempt under KRS 197.510(7) and the same rationale as stated above would apply. This response is vague in the sense that it does not indicate whether the requested records exist and, if so, their general nature.
In OAG 91-101, this office held that a public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested record exists. Citing OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
Mr. Reneer appears to be asking for authorizations to receive payment, not payment records themselves. The response should advise if these records exist. Under KRS 197.510(7), the department has broad, but not unlimited, discretion to deny access to financial records. This term should not be so broadly construed as to make the disclosure requirements a nullity. To this extent, the response was procedurally deficient. As to the substantive issue, requested records or copies of financial records maintained by the private provider, for the reasons noted above, are exempt from disclosure under KRS 197.510(7). Accordingly, we conclude these records were properly withheld form disclosure under authority of that statute.
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.