Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in denying Chris Hawkins' October 15, 2012, request for a "copy of transfer authorization form submitted to transfer me from KSR to other KDOC [Kentucky Department of Corrections] institution(s)." In a timely written response, KSR Offender Information Specialist William Mustage quoted the language of KRS 61.878(1)(i) and (j), 1 asserting that "[p]reliminary drafts, pending transfers, pre[-]classification work sheets, victim impact statements, letters written by people or prosecutors, pre-parole progress reports, i.e, notes made by staff which are [not] intended to give notice of final action of a public agency" are exempt from inspection. (Original emphasis.) Arguing that he possessed copies of transfer authorization forms obtained through a previous request(s) made under the Act, Mr. Hawkins initiated this appeal by letter dated October 18, 2012. Because disclosure of the requested form would pose a security threat, KSR is entitled to withhold the form per KRS 197.025(1), which it belatedly invoked on appeal.
Upon receiving notification of Mr. Hawkins' appeal from this office, Linda M. Keeton, Assistant Counsel, Justice and Public Safety Cabinet, responded on behalf of KSR. In justifying its reliance on KRS 61.878(1)(j), 2 KSR asserted that the requested form "is a pending/preliminary document that will be available for inspection under the Open Records Act once the document is finalized and the inmate is transferred from KSR." Because Mr. Hawkins' most recent request sought a pending/preliminary document, KSR maintained that its denial on the basis of KRS 61.878(1)(j) was proper.
Ms. Keeton further explained that Mr. Hawkins' previous request dated October 12, 2011, to which he alluded in his appeal, asked for a copy of a transfer authorization form from Otter Creek Correctional Complex. The agency granted his request, she advised, because Mr. Hawkins was transferred from OCCC in February 2011 and submitted his request in October 2011. That request "did not raise a security concern because the transfer was completed eight (8) months earlier." 3 Relying upon KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 4 KSR asserted that Mr. Hawkins' current request does present a security concern because he is asking for a transfer authorization form that specifically names those institutions recommended and approved for his transfer. Included with Ms. Keeton's November 2, 2012, response was a copy of the previously disclosed October 17, 2011, form. According to KSR staff, Ms. Keeton continued, "inmates are not told of upcoming transfers for security reasons and information pertaining to pending transfers is considered confidential. This is to prevent escape, attempts to escape, contraband, etc." KSR correctly observed that the Attorney General has consistently recognized the broad discretion KRS 197.025(1) affords the Commissioner and that his office should not "'substitute its judgment for that of the correctional facility or the Department of Corrections.'" Keeton response dated November 2, 2012, quoting 08-ORD-148, p. 4.
Because this office finds the agency's position relative to KRS 197.025(1) both persuasive and consistent with prior decisions, a detailed analysis of KRS 61.878(1)(j) on the facts presented is unnecessary though its position regarding application of that exception is also valid. See 99-ORD-205 (copy enclosed); 09-ORD-088. Resolution of this matter 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.
This confidentiality 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 based on KRS 197.025(1) for 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); records documenting the procedures employed in an execution (97-ORD-51); incident reports (03-ORD-190); and videotapes of inmate visitation rooms (04-ORD-017). KSR determined, in a proper exercise of its discretion, that disclosure of such forms would pose a security threat insofar as it could result in attempts to escape, etc. As previously noted, the Attorney General 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; 92-ORD-1314; 96-ORD-179; 00-ORD-125; 03-ORD-190; 07-ORD-039; 10-ORD-056. This office again declines to substitute its judgment for that of the correctional facility or the DOC; accordingly, the agency's denial is affirmed on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
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:
Chris Hawkins, # 103061William MustageLinda M. Keeton
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