Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Northpoint Training Center violated the Open Records Act in responding to Suzanne Cassidy's open records request for a copy of inmate Charles Shorter's institutional file. In her letter of appeal Ms. Cassidy, an attorney, indicated that she was conducting an investigation on behalf of her client, Mr. Shorter, as to allegations of his mistreatment by prison authorities. Along with her request, Ms. Cassidy presented a release, signed by Mr. Shorter, authorizing prison officials to provide her with a copy of his prison file.
By letter dated August 22, 2000, Lieutenant Kathy Gifford, Open Records Coordinator, responded to the request on behalf of the Center. In her response, Lt. Gifford stated:
In the Release signed by Mr. Shorter, it states the request includes, but is not limited to, all records of all incident reports involving him, his medical records while in the prison system, copies of all photographs and video tapes in which he appeared, and any and all correspondence between anyone on the staff or any prison facility in which he had been imprisoned and any other party.
The incident reports and medical records that are not exempt by statute may be provided at a cost of ten cents per page. The remaining portion of the request is overly broad and non-specific. KRS 61.872 provides for a specific description of the records you wish to be copied.
You must clarify the request for "copies of all photographs and video tapes in which I appear, and any and all correspondence between anyone on the staff of any prison facility in which I have been imprisoned and any other party" before the request can be processed.
The request for copies of correspondence between Mr. Shorter and anyone on the staff of any prison facility in which he has been imprisoned and any other party is impossible to process without more specific information.
There is a fee of ten cents per and the cost of postage due before any copies are mailed. If you have any questions regarding this matter, please contact me at the institution.
Responding to Lt. Gifford's August 22, 2000 letter, Ms. Cassidy indicated that, while she did not accept her full response, she would like to receive the documents from the file that the Center agreed she could have.
Pursuant to this request, the Center advised Ms. Cassidy that she would be provided with 359 pages from Mr. Shorter's medical file and 41 pages of disciplinary reports upon the receipt of $ 40.00 for the copies.
In her letter of appeal, Ms. Cassidy argues that, pursuant to KRS 61.884, her client is entitled to review his entire file and is further authorized to allow her, his attorney of record, to receive a copy of that file.
As authorized by KRS 61.880(1) and 40 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs elaborated on Lt. Gifford's response, explaining that Lt. Gifford had asked Ms. Cassidy for clarification of her request in order to either provide the appropriate non-exempt documents or to determine if any of the documents were exempt from disclosure under an applicable statutory provision.
Explaining the need for clarification of the request for "copies of all photographs and video tapes in which I appear" and "any and all correspondence between anyone on the staff or any prison facility in which he had been imprisoned and any other party," Ms. Biggs explained:
The Department photographs inmates upon arrival in the system. Inmates are also photographed if their physical appearance has altered significantly (e.g., growth of mustache or beard). An inmate will be photographed by medical in the event that he is injured in an altercation with staff or another inmate. This photograph would be retained in the medical file. The yard is covered by video cameras for security purposes. On occasion, these cameras have captured incidents that have led to disciplinary action and/or referral for outside felony charges. Video cameras are also utilized to record the moving of an inmate to segregation. The Department can provide Ms. Cassidy with copies of her client's identification photos; however, unless Mr. Shorter's behavior has required the use of physical restraints or his movement to seg has been documented, the Department will not be able to provide any video.
Lt. Gifford was somewhat confused by the request for "any and all correspondence between anyone on the staff or any prison facility in which he had been imprisoned and any other party." Lt. Gifford interpreted the request to be for any letters Mr. Shorter may have written to departmental staff. In reading the release, I have interpreted the provision to mean letters written by any third party or Corrections' employees regarding Mr. Shorter. Portions of the inmate's file are exempt from disclosure pursuant to KRS 61.878(1)(i), (j), (k), and (l). Those documents or portions thereof which are preliminary in nature or which contain preliminary recommendations of staff are exempt from disclosure under KRS 61.878(1)(j). Correspondence with private individuals that are not intended to give notice of final action by a public agency is exempt from disclosure. Mr. Shorter's file contains numerous correspondence between a private individual and departmental staff. Those letters that do not reflect final action by the agency are exempt from disclosure. Letters written by Mr. Shorter may be disclosed under the authority of the signed release; however, this office will not disclose letters written by a third party which fall within the parameters of KRS 61.878(1)(i) without that person's specific consent. Upon receipt of a check or money order made payable to the Kentucky State Treasurer in the amount of $ 2.17, letters written by Mr. Shorter and the responses shall be forwarded to Ms. Cassidy.
Pursuant to KRS 61.878(1)(k) and KRS 439.510, the PSI and other documents and information are exempt from disclosure. KRS 439.510 provides, in part:
The Department will provide an inmate the opportunity to be advised of the factual contents and conclusions of his PSI if he waived the PSI prior to sentencing; however, that is the exception to the rule. See Commonwealth v. Bush, Ky., 740 S.W.2d 943 (1987). Any other information obtained by an officer in order to prepare pre-parole progress reports or special reports to the Parole Board are also exempt pursuant to KRS 61.878(1)(j) and KRS 439.510.
Ms. Cassidy did not agree with Lt. Gifford's full response regarding the request and release submitted; however, the foregoing statutory provisions exempt from disclosure certain documents contained in an inmate's file. The signed authorization does not override these statutory exemptions.
Lt. Gifford informed Ms. Cassidy of the fee for obtaining copies of the inmate's medical records and disciplinary reports. As of Friday, the fee had not been received. (As of 1 September 2000, the inmate is no longer being housed at Northpoint Training Center). Upon receipt of a check or money order made payable to the Kentucky State Treasurer, the medical records and disciplinary reports shall be forwarded to Ms. Cassidy.
We are asked to determine whether the Center violated the Open Record Act in not releasing a copy of the inmate's entire prison file either to the inmate or his attorney of record. For the reasons that follow, we conclude that the agency did not violate the Act in this regard, as portions of the file are exempt from disclosure under various exemptions of KRS 61.878.
We address first Ms. Cassidy's argument that her client and she, as his attorney of record, are entitled to the inmate's entire prison file under KRS 61.884. That statute provides:
Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.
Prior opinions of this office have held that certain records contained in an inmate's institutional file are exempt from disclosure to the inmate under KRS 61.878. In OAG 85-88, we held that the Kentucky State Penitentiary properly denied an inmate's request to inspect his complete institutional file. There we recognized that notwithstanding KRS 61.884, an agency may withhold from a person a document in which he is mentioned if the document comes under one of the exemptions to public disclosure set forth in KRS 61.878.
KRS 61.878(1)(l) prohibits disclosure of "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" and KRS 61.878(1)(k) prohibits disclosure of "all public records or information the disclosure of which is prohibited by federal law or regulation"
KRS 439.510 makes confidential:
All information obtained in the discharge of official duty by any probation or parole official . . . such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet . . . unless otherwise ordered by such court, board or cabinet.
Reports and records in Mr. Shorter's file prepared by his probation or parole officers in the discharge of their official duties would be exempt from disclosure and may be properly denied under KRS 439.510 and KRS 61.878(1)(l). 00-ORD-85; 96-ORD-147.
In addition, KRS 197.025(1) 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 other person.
If the Commissioner or the Corrections Cabinet conclude that records sought by the inmate from his prison file would constitute a threat to the security of other inmates, the institution and institutional staff, it could withhold access to those records under authority of KRS 197.025 and KRS 61.878(1)(l). 99-ORD-47. The same would apply to videos or photographs, if release were deemed to pose a threat to the security of the institution.
28 U.S.C. § 534 prohibits the Department's disclosure of a FBI rap sheet to anyone, including the individual who is the subject of the rap sheet. Thus, this record would be exempt from disclosure under 28 U.S.C. § 534 in tandem with KRS 61.878(k). 00-ORD-85; 97-ORD-178.
KRS 61.878(1)(i) and (j) authorize the nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In 93-ORD-136, this office held that the Department of Corrections properly relied upon these two exceptions in denying a request for copies of records or documents which had been sent to the Parole Board wherein individuals set forth personal opinions and recommendations as to whether a prisoner should be paroled. In that decision, we observed:
In 93-ORD-1 . . . we said that a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether a person should be paroled is a preliminary document expressing personal opinions and recommendations, and not subject to public inspection unless incorporated into or made a part of the Parole Board's final decision on the matter. In addition, we also stated that a letter from a person to the Parole Board relative to a possible parole can be characterized as correspondence with a private person which can be exempt from public inspection under KRS 61.878(1)[i] and [j] unless incorporated into or made a part of the Parole Board's final action relative to eligibility for parole.
In OAG 92-125, this office held that the Kentucky State Penitentiary did not violate the Open Records Act in denying an inmate's request for his most recent pre-parole progress report under authority of what is now KRS 61.878(1)(j). In that opinion, we stated:
The report contains the caseworker's opinions in such areas as staff interaction, psychological and psychiatric condition, medical condition, and work performance. It may also include an inmate's formal psychological evaluation. Clearly, the pre-parole progress report is a preliminary document containing opinions, observations, and recommendations. It is purely advisory and is one of several documents submitted to the Parole Board for its consideration. Unless it is incorporated into the Parole Board's final decision, it is exempt from public inspection pursuant to KRS 61.878(1)[j].
Under KRS 61.878(1)(i) and (j), the Center may deny a request for copies of preliminary documents containing opinions, observation, and recommendations, which are not incorporated into or reflecting final agency action and correspondence between third parties and Correction's staff regarding Mr. Shorter, that are not intended to give notice of final action of the agency. 00-ORD-3; 98-ORD-27.
Thus for the reasons stated, the Center did not violate the Open Records Act in denying Ms. Cassidy's request for the complete prison file of her client, Mr. Shorter. Neither Mr. Shorter nor his attorney of record is entitled to the entire file under KRS 61.884. As noted in the discussion above, some of the records contained therein are exempt under exceptions in KRS 61.878. The Center has advised Ms. Cassidy that copies of nonexcepted portions of Mr. Shorter's file are available upon prepayment of ten cents per page. The agency also asked for clarification as to portions of her request. The parties to this appeal should continue to cooperate to resolve any differences or misunderstandings related to records in the institutional file. The requester should describe with particularity the records within the file she seeks. OAG 85-88. The agency, should it deny access to a particularly described record, should state the exception upon which it relies for the nondisclosure and provide a brief explanation as to how the cited exception applies to the record withheld. KRS 61.880(1).
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.