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 denial by U.S. Corrections Corporation of Mr. John E. Reneer's open records request to inspect certain of the Corporation's records.
By letter dated July 8, 1996, Mr. Reneer requested to inspect the following records:
1. The record(s) reflecting the names of every person who has held or continues to hold share(s) of stock in U.S. Corrections Corporation between and inclusive of the date of incorporation through the date of response hereto.
2. Every institutional Log sheet and other record reflecting every date that Dr. Ameji entered Otter Creek Correctional Complex, Marion Adjustment Center and/or Lee Adjustment Center during the 1993-94, 1994-95 and/or 1995-96 fiscal years.
By letter dated July 16, 1996, Mr. R. Allen McCartney, Attorney, responded on behalf of the Corporation, stating:
In regards to your open records request, please be advised that U.S. Corrections Corporation is not a public corporation and therefore not subject to Kentucky Open Records Request, KRS 61.870.
After receipt of the letter of appeal, Mr. McCartney, 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 the appeal. In his response, Mr. McCartney states:
U.S. Corrections Corporation is a private corporation registered to do business in Kentucky, Ohio, North Carolina, Texas and California and is not a "public agency", pursuant to K.R.S. 61.870, relative to all its' operations and functions. Mr. Reneer specifically requested copies of all shareholders' names and addresses for the corporation. These documents and records are "financial records" of the corporation and are not, therefore, public records and specifically exempted by statute. The second documentation that Mr. Reneer requested was a visitation list for Dr. Ameji. Dr. Ameji is neither an employee or agent of U. S. Corrections Corporation, but is an independent physician. Any visitation list with Dr. Ameji, relative to any person that Dr. Ameji would have visited in an institution would be a patient/ physician privileged communication and therefore deemed a medical record and specifically excluded from the open records law. I will however state that we are uncertain if Dr. Ameji ever made any visits to our institutions since this visitation would be contained in each individual inmates medical record which, I am sure you will recognize, Mr. Reneer has no right to this information.
Relative to K.R.S. 197.510, U. S. Corrections does have a plan for the dissemination of information about their correctional facilities, and these plans are available through the institution's policy and procedure manual, which Mr. Reneer had access to during his period of incarceration with U. S. Corrections. These documents, of course, are considered public documents pursuant to statute, but were not requested by Mr. Reneer.
We are asked to determine whether the U. S. Corrections Corporation is subject to the Kentucky Open Records Act and whether the requested corporate records are subject to inspection. For the reasons which follow, we conclude that the Corporation is subject to the Open Records Act and its response to Mr. Reneer's request was consistent in part and inconsistent in part with the Act.
KRS 197.510(7) provides:
The private provider shall develop and implement a plan for the dissemination of information about the adult correctional facility to the public, government agencies, and the media. The plan shall be made available to all persons. All documents and records, except financial records, maintained by the private provider shall be deemed public records as defined by KRS 61.870 and be subject to the provisions of KRS 61.872 to 61.884.
This statute makes the Open Records Act applicable to private providers, such as U. S. Corrections Corporation. In 94-ORD-27, this office stated:
Moreover, the private provider is publicly accountable. The records of the private provider are, in general, treated as public records within the meaning of KRS 61.870(2). KRS 197.510(7). That statute stops short, however, of mandating wholesale disclosure of private provider records. It expressly exempts financial records maintained by the private provider, presumably out of a recognition that the provider is a private entity which might be competitively disadvantaged by the release of these records.
It is the decision of this office that the U. S. Corrections Corporation is subject to the Open Records Act. We further conclude that the Corporation properly denied the request for access to the Corporation's records relating to stockholder information. KRS 197.510(7) specifically exempts from disclosure financial records of the private provider. Stockholder information relates to the private financial business of the corporation and not to the administration of public business which the private provider is undertaking and for which it is publicly accountable. Accordingly, the Corporation's response in this regard was proper.
The second portion of Mr. Reneer's request was to inspect "every institutional Log sheet and other record reflecting every date that Dr. Ameji entered Otter Creek Correctional Complex, Marion Adjustment Center and/or Lee Adjustment Center during the 1993-94, 1994-95 and/or 1995-96 fiscal years."
In 93-ORD-102, this office held that a visitor's log in which visitors were required to register their names upon entering the detention center, absent any direct evidence that release of the log would constitute a clearly unwarranted invasion of personal privacy, was an open public record.
Presumably, the Corporation's private provider institutions maintain a log of persons entering or visiting the institutions. If no such record exists, the Corporation should so state in its response. The Corporation's response is procedurally deficient in that it fails to advise if the requested document exists. If such a record exists and contains information of a confidential nature, such as patient/ physician privileged communication or the medical records of other inmates, the statutory provision that makes this information exempt from disclosure should be cited and the confidential portions of the record redacted. Thus, to the extent that the institutions maintain a visitor's log or similar record responsive to Mr. Reneer's request, it should make such available for his inspection. If the records contain material which is excepted from disclosure, that material should be redacted and the nonexcepted material made available. KRS 61.878(4).
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.