Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in denying Leonard Stevenson's July 22, 2010, request for "one (1) copy each of all documents generated from an EOR report [sic] by Lieutenant Clark on February 22, 2010[, concerning] an incident occurring in the Corrections psychiatric treatment unit, here at KSR," which involved Mr. Stevenson and inmate Dermane Swain, # 226952." Specifically, Mr. Stevenson requested "all verbal, [handwritten] , or recorded statements made by any inmate (s) in relation to the aforesaid incident" or by any KSR staff, including "any written statements by Mark Todd, Dr. Anderson, and any [handwritten] notes of the investigating officer, Lieutenant Clark." In a timely written response, Marc Abelove, Offender Information Specialist, denied Mr. Stevenson's request on the bases of KRS 61.878(1)(i) and (j); however, in responding to Mr. Stevenson's appeal, the Department of Corrections invoked KRS 197.025(1) on behalf of KSR. Based upon the following, this office affirms the agency's denial on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
Upon receiving notification of Mr. Stevenson's appeal from this office, Staff Attorney Jonathan S. Milby, DOC, elaborated upon the agency's position as follows:
Inmate statements are made in confidence to institution staff, and are not intended to be circulated to other inmates. Disclosing such inmates, particularly to other inmates involved in an incident, risks the security of the inmate giving the statement as well as staff and other inmates who may incite conflict as a result of such disclosure. Release of these statements can also compromise institutional security both by increasing the likelihood of inmate disruptions and by inhibiting the ability of staff to obtain candid information from inmates necessary to investigate institutional matters and maintain the security of all staff and inmates. Accordingly, the exception to the Open Records Act contained in KRS 197.025(1) is appropriately invoked in this case. The Attorney General has on prior occasions recognized that the discretion afforded the Commissioner via KRS 197.025(1) is broad, and that the Office of the Attorney General should not "substitute its judgment for that of the correctional facility or the Department of Corrections." 08-ORD-148, p. 4. See also 10-ORD-005; 10-ORD-008; 06-ORD-026; 03-ORD-190; 00-ORD-125; 96-ORD-179. The Department has legitimate and clear reasons for withholding this information[.]
The agency's position relative to KRS 197.025(1) is consistent with governing precedents.
Resolution of this appeal turns on the application of KRS 197.025(1), which 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, 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.
As indicated, this provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are included among those records removed from application of KRS 61.870 to 61.884.
By enacting KRS 197.025(1), "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; 03-ORD-190. In construing the expansive language of this provision, 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; 03-ORD-190. Application of this 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; 03-ORD-190.
Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from the public for a variety of records based on KRS 197.025(1), including, but not limited to conflict sheets (OAG 91-136), psychological evaluations of inmates (OAG 92-25, 92-ORD-1314), facility canteen records (94-ORD-40, 96-ORD-209, 97-ORD-25), personnel records of correctional officers (96-ORD-179, 96-ORD-182, 96-ORD-204), facility deficiency reports (96-ORD-222), records confirming that inmates submitted to HIV testing (96-ORD-243), inmate honor dorm waiting lists (97-ORD-33), and records documenting the procedures employed in an execution (97-ORD-51). The analysis contained in 06-ORD-026 (upholding redaction of name of medical staff member who provided a statement concerning an occurrence) and 07-ORD-039 (affirming denial of request for EOR in its entirety) is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. See 10-ORD-056 (upholding denial of request for statements of personnel at correctional facility contained in EOR); 10-ORD-063; 10-ORD-099.
Here, KSR determined, in a proper exercise of its discretion, that disclosing the requested statements contained in the subject EOR would pose a security threat to other inmates and KSR staff. The Attorney General, as previously noted, has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 96-ORD-179; 00-ORD-125. As before, this office declines to substitute its judgment for that of the correctional facility or the Department of Corrections. In sum, KSR properly relied upon KRS 197.025(1) in withholding the requested statements; accordingly, consideration of the alternative bases for denial is unnecessary.
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.
Leonard Stevenson, # 223085Marc AbeloveJonathan S. Milby