Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Marion Adjustment Center did not violate provisions of the Open Records Act in partially denying Paul Chumbley's January 19, 2011, request for "any and all documentation the [facility] has concerning Ernest D. Pine (Inmate ID 230469) . . . includ[ing], but . . . not limited to, the inmate's visitation history." The record on appeal substantiates none of the violations alleged.
By letter dated January 25, 2011, Cole Carter, 1 Assistant General Counsel for Corrections Corporation of America, responded to Mr. Chumbley's request explaining that the requested records are maintained by MAC which is operated by CCA pursuant to a contract with the Kentucky Department of Corrections. Mr. Carter indicated that he would forward the request to MAC and that MAC would thereafter contact Mr. Chumbley to provide a duplication and postage fee for any nonexempt records located. On February 28, 2011, Assistant Warden Harrell Gray notified Mr. Chumbley that 23 responsive records had been located and would be mailed to him upon prepayment of the referenced fees. Warden Gray denied Mr. Chumbley access to Mr. Pine's presentence investigation, medical file and mental health appraisal, conflict questionnaire, and visitation information, citing statutory authority for the partial denial of his request. With reference to visitation information, Warden Gray relied on KRS 197.025 and 61.878(1)(a). He explained that "[r]evealing personal information of private citizens and/or children . . . could potentially create a threat and an unwarranted invasion of privacy to that individual . . . ."
Dissatisfied with MAC's denial of his request for visitation information, and the delays in transmitting the nonexempt records to him, Mr. Chumbley initiated this appeal on May 18, 2011, noting that "the Attorney General has, on a number of occasions, held that a visitor sign-in log at a correctional facility is not exempt from public inspection . . . ." He acknowledged that broad discretion is vested in the Commissioner of the Department of Corrections, or his designee, to deny requests for records the disclosure of which "represent a threat to institutional security" but insisted that MAC offered no proof that such a threat exists with regard to visitation information. While MAC's initial response to Mr. Chumbley's request was deficient in this respect, Mr. Carter's supplemental response provided ample proof of the threat "to the security of the inmate, any other inmate, correctional staff, the institution, or any other person" that could result from disclosure of visitation information in this particular context. We therefore affirm MAC's partial denial of Mr. Chumbley's request.
We will not belabor the procedural objections Mr. Chumbley raises. He acknowledges receipt of a January 25, 2011, response to his January 19, 2011, request. That response fell within the statutorily mandated five business day response time afforded correctional facilities by KRS 197.025(7). 2 The delays that followed were occasioned as much by Mr. Chumbley's unavailability, 3 and his two-pronged open records inquiry, 4 as any dilatory conduct on the part of MAC. And while MAC's February 28, 2011, response to his request for visitation information was somewhat cursory, that deficiency was corrected in the supplemental response prepared by Mr. Carter on its behalf. We find these allegations of procedural noncompliance unmeritorious.
Turning to the substantive issue on appeal, we find ample support in the referenced supplemental response for MAC's denial of that portion of Mr. Chumbley request relating to visitation information. We adopt, in full, the well-reasoned arguments Mr. Carter advanced in support of nondisclosure of these records under KRS 197.025(1). That statute provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, no person 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.
Noting that Mr. Pine was convicted of a particularly heinous sex crime, 5 and that "[g]eneralizations about convicted prisoners and those who choose to associate with them cannot be applied to sex offenders and those who associate with them," Mr. Carter observed:
Corrections administrators rightly believe that continuing visitation with friend and family support networks during incarceration is critical to rehabilitation. If the visiting records of sex offenders are freely circulated in the public domain, fear of abuse and harassment will cause those visitors to forego their association. In doing so, rehabilitation will be undermined severely. Prisoners deprived of visitation become difficult to manage, increasing the threat of harm by those prisoners against other prisoners.
In this case, MAC's administrator must contemplate not only the risk to a prisoner, but also the risk that revelation of their identities might pose to members of the public who remain in association with him during his incarceration. Public outrage over this heinous crime could easily fuel abuse and threats against this prisoner's associations were their identities known to the public.
MAC, through Mr. Carter, thus establishes a threat to the security of the inmate, other inmates, correctional staff, the institution, or any other person. Having done so, MAC satisfied its statutory burden of proof relative to invocation of KRS 197.025(1). We need not, therefore, address the facility's privacy arguments under KRS 61.878(1)(a).
In so holding, we do not establish a blanket rule that all visitation information maintained by correctional facilities is excluded from public inspection by KRS 197.025(1) . MAC stipulates that the application of KRS 197.025(1), as well as KRS 61.878(1)(a), "must be evaluated on a case-by-case basis, and the discretion to apply them is not unlimited or unfettered." Having done so, and having effectively distinguished the authorities upon which Mr. Chumbley relies, we affirm its partial denial of his request.
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.
Distributed to:
Paul ChumbleyCole CarterAmy V. Barker
Footnotes
Footnotes
1 Mr. Chumbley's request was addressed to CCA rather than MAC.
2 KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available. (Emphasis added.)
3 After repeated unsuccessful attempts to locate Mr. Chumbley, Mr. Carter learned that he is a law clerk in the firm on whose letterhead he mailed his requests and subsequent correspondence, and therefore available only on a limited basis.
4 Mr. Chumbley simultaneously pursued this matter with both CCA and MAC.
5 We are mindful that the firm for which Mr. Chumbley clerks represents Mr. Pine's victim, but our analysis does not turn on the identity of the requester. Instead we focus on the nature of the records requested. Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994). Records that are unavailable to the public generally are unavailable to the firm's client despite her heightened interest.