Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Green River Correctional Complex (GRCC) violated the Open Records Act in its disposition of Irvin Edge's open records requests. Because the actions giving rise to Mr. Edge's two separate appeals raise common questions of law, they are consolidated for purposes of administrative adjudication. For the reasons that follow, we conclude that GRCC's response was procedurally deficient but substantively correct.
By letter dated July 14, 2003, Mr. Edge submitted a written request for copies of the following records:
"Incident Reports" and "Notification of Extraordinary Occurrence" Concerning by assisting in saving the Life of [an institutional employee].
Having received no response to his request, Mr. Edge initiated an open records appeal on July 23, 2003.
Apparently on the same day, in a letter dated July 23, 2003, to Mr. Edge, Teresa Shanklin, Offender Records Custodian, GRCC, denied his request, explaining:
An information report/incident report is a preliminary report (KRS 61.878(1)(i) that serves to document daily events and staff and inmate interactions crucial to the secure operation of this institution
Your request is denied based on KRS 197.025(1) which provides that we may withhold records that might jeopardize the safety and security of this institution, staff, or your own safety.
By letter dated July 29, 2003, Mr. Edge initiated a second appeal to this office appealing GRCC's denial of his request. In his letter Mr. Edge stated that GRCC's reliance on KRS 197.025(1) is without merit because the requested report is a record where he gave information regarding a conspiracy; that he had no intention of sharing the report with any other inmate; that the incident was common knowledge among the inmate population; and that the conspirators involved were no longer at the institution, thus no threat to the inmates, staff, or the institution existed.
After receipt of notification of the first appeal and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Department of Corrections, by letter dated August 1, 2003, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis stated, in relevant part:
Please find attached final disposition of Mr. Edge's open records request by GRCC Offender Records Custodian, Teresa Shanklin. Ms. Shanklin responded to Mr. Edge's request on July 23, 2003. Pursuant to KRS 197.025(7), her response should have been issued on or before July 21, 2003. While the Department admits GRCC's response to Irvin Edge was procedurally deficient since Shanklin did, in fact, fail to respond to Mr. Edge's request in a timely manner and additionally failed to state that one of the documents requested does not exist, the Department asserts that the GRCC response was otherwise in accordance with the provisions of the Kentucky Open Records Act. Despite the technical errors made by GRCC in handling this request, their denial of access to the record requested should be upheld.
In addressing Mr. Edge's request for a copy of the "Notification of Extraordinary Occurrence," Ms. Dennis advised, in relevant part:
GRCC did not address Mr. Edge's request for what is commonly referred to as an Extraordinary Occurrence Report (EOR) of the incident he described in his request. Ms. Shanklin has advised me, however, that no such document exists.
In elaborating on the GRCC's response to Mr. Edge's request for copies of "Incident Reports," Ms, Dennis explained:
Incident or occurrence reports are prepared at the institutional level in response to a wide variety of incidents that may occur on any given day at a correctional facility.
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To require the Department release such a report on the yard of a correctional facility simply because it contains the name of the requester is to invite retaliation against the inmate who gave information that is the basis of the report, against correctional officers whose names are included in the report, or against the employee who reported the incident.
The Legislature recognized the inherent difficulty in applying the open records act to inmate requests for records when it enacted KRS 197.025(1). This provision grants the Department wide discretion in dealing with its mission to maintain the security of the institution and control of the inmate population. Most importantly, it enables the Department of Corrections to help insure the safety of the public. Allowing inmates to view incident reports that document the day to day conflicts that arise in the setting of a correctional facility would constitute a threat to the security of the institution by providing a means by which inmates could get information that may become the basis for retaliation against other inmates or security staff of the institution.
Although we find that GRCC's initial response was procedurally deficient, we affirm the Department's subsequent and substantive response denying Mr. Edge's requests for institutional records
Addressing the procedural issue first, KRS 197.025(7) requires that the GRCC respond in writing, and within five business days, after receipt of an inmate's open records request. The record before us indicates the GRCC received the Mr. Edge's request on July 14, 2003, but did not respond to the request until July 23, 2003. The GRCC's failure to respond to Mr. Edge's request within five business days, constituted a procedural violation of the Open Records Act. We remind GRCC that the procedural requirements of the 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. Although the GRCC acknowledges that its response was late, we urge GRCC to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issues in this appeal, we note that KRS 197.025(1), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department [of Corrections], 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.
In enacting this provision, "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3. The Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3.
This broadly worded provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2. Since the statute was enacted in 1990, this office has affirmed correctional facilities' denials of inmate requests, as well as requests submitted by others, for conflict sheets (OAG 91-136); psychological evaluations (OAG 92-25, 92-ORD-1314); inmate canteen records (94-ORD-40, 96-ORD-209, 97-ORD-25); personnel records of correctional officers or employees (96-ORD-179, 96-ORD-182, 96-ORD-204); reports of deficiencies at correctional facilities (96-ORD-222); records confirming that inmates have submitted to HIV testing (96-ORD-243); inmate honor dorm waiting lists (97-ORD-33); and records containing procedures employed in an execution (97-ORD-51).
The Department in its supplemental response advised that "allowing inmates to view incident reports that document the day to day conflicts that arise in the setting of a correctional facility would constitute a threat to the security of the institution by providing a means by which inmates could get information that may become the basis for retaliation against other inmates or security staff of the institution." The Department, in the proper exercise of its discretion, determined that release of the requested records would pose a threat to the safety and security of inmates, staff, and the institution This office has recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion to deny inmates access to records. 96-ORD-179; 00-ORD-125. We have also declined to substitute our judgment for that of the facility or the Department of Corrections, and will not do so here. Accordingly, we conclude the GRCC properly relied upon KRS 197.025(1) in its denial of Mr. Edge's request for a copy of the incident report.
We next address the Department's response affirmatively advising Mr. Edge that the requested Extraordinary Occurrence Report did not exist. This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, the agency's actions, in advising Mr. Edge that the record he was seeking did not exist, was proper and consistent with the requirements of the Open Records Act and did not constitute a violation of the Act.
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 proceedings.
Irvin Edge, # 114107Green River Correctional ComplexBox 93001200 River RoadCentral City, KY 42330-9300
Teresa ShanklinOffender RecordsGreen River Correctional ComplexBox 93001200 River RoadCentral City, KY 42330-9300
Emily DennisKY Department of Corrections2439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
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