Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
WLEX-TV investigative reporter Richard Essex appeals the Department of Corrections' denial of his February 13, 2015, request to inspect and copy the "policy for restraining of inmates during childbirth, [and] all incident reports associated with restrained, handcuffed/ shackled inmates during childbirth. " On February 15, 2015, the department denied Mr. Essex's request, explaining that the referenced policies "have been designated as 'Secure Policies' and are therefore exempted from disclosure by the Commissioner of the Department of Corrections under the 'Security Threat' exemption." Although it did not provide the citation for the statute, the department quoted KRS 197.025(1). That statute provides:
1KRS 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.
The department then advised Mr. Essex that although the policy is exempt, it "state[s] that restraints on pregnant offenders during active labor and the delivery of a child shall only be used in extreme instances." Additionally, the department noted, the policy provides that "[r]estraints used on pregnant offenders prior to active labor and delivery shall not put the pregnant offender or the fetus at risk." Questioning how disclosure of the records identified in his request could "constitute a threat to inmate security, the security of correctional staff, the institution, or security of other inmates, " Mr. Essex thereafter initiated this appeal.
In supplemental correspondence directed to this office, the department identified the referenced policy and procedure as CPP 9.14 and explained that it is "excepted from disclosure pursuant to KRS 61.878(1)(1) 1 and KRS 197.025(6)." The latter statute states:
The policies and procedures or administrative regulations of the department which address the security and control of inmates and penitentiaries shall not be accessible to the public or inmates. The Administrative Regulations Review Subcommittee's review process for any of these policies and procedures or administrative regulations, which may be filed with the regulations compiler, shall be conducted in closed sessions and held confidential.
Acknowledging that citation to KRS 197.025(6) was inadvertently omitted, the department asserted that KRS 197.025(1), indirectly referenced in its original response, "would equally apply to the provision of a secured policy. " Nevertheless, the department indicated that "KRS 197.025(6) should also have been cited in the response for clarity." The department further acknowledged that it failed to respond to Mr. Essex's request for "incident reports relating to restrained child births." The department belatedly advised that "[a] search has been made and no incident reports exist that are responsive to the request." Because an incident report is the "originating document, no other responsive records were created."
The department's response to Mr. Essex's request was procedurally deficient but substantively correct. KRS 61.880(1) states that "[a]n agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." In its original response, the department failed to identify "the specific exception authorizing the withholding" of CPP 9.14. The department failed to respond, in any fashion, to Mr. Essex's request for "incident reports associated with restrained, handcuffed, shackled inmates during childbirth. " Although these errors were corrected on appeal, the department's initial response did not satisfy the requirements of KRS 61.880(1).
The department's supplemental denial is supported by citation to legal authority that has been approved by this office in past open records decisions. Thus, in 02-ORD-82 we approved a correctional facility's denial of a citizen's request for a copy of a jail roster reflecting the names and locations of the entire jail population. We recognized that KRS 197.025(1) authorized nondisclosure of records identified by the Commissioner of the department, or his designee, as capable of "imperil[ing] personal and public security and administrative order." 02-ORD-82, p. 4 citing 95-ORD-121 and 00-ORD-182; see also, 07-ORD-168 (affirming correctional facility's denial of a newspaper's request for in-house surveillance video of an altercation between two inmates) .
By the same token, this office has previously affirmed a correctional facility's denial of access to secured policies and procedures on the basis of KRS 197.025(6). See, e.g., 09-ORD-059, 09-ORD-181, and 09-ORD-183. At page 1 of 05-ORD-055, we reasoned that KRS 197.025(6) "establishes beyond cavil that policies and procedures . . . relating to security and control of inmates and penitentiaries are inaccessible to inmates and the public." Pursuant to KRS 197.025(6), both the policies and procedures of the department addressing the security and control of inmates are confidential, and the Administrative Regulations Review Subcommittee's review of any such policies or procedures must "be conducted in closed session and held confidential. " CPP 9.14 is classified as a secured policy and procedure in 501 KAR 6:999, 2 and KRS 197.025(6) prohibits access to it.
With regard to "incident reports associated with restrained/ handcuffed/ shackled inmates during childbirth, " we have noted the department's procedural violation of KRS 61.880(1), but find that its ultimate resolution of this issue was proper. In an attachment to its supplemental response, the department advised that a search for responsive records was conducted and no records were located. The department's "review revealed [it] had no situations involving 'restrained/ handcuffed/ shackled' offenders during childbirth" for the period identified in Mr. Essex's request. In the absence of a prima facie showing by Mr. Essex that responsive records exist, the department discharged its duty by notifying him that it maintains no such records. 11-ORD-74, p. 3. As we have stated on several occasions:
"A public agency cannot afford a requester access to a record that it does not have or which does not exist." 14-ORD-027. "A complainant may overcome an agency's denial that records exist, but 'must make a prima facie showing that such records do exist." 14-ORD-097; Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005).
Mr. Essex does not refute the department's denial of the existence of responsive records by presenting prima facie evidence that responsive records do, in fact, exist. We therefore affirm the Department of Corrections' denial of this portion of his request.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 KRS 61.878(1)(1) authorizes the withholding of "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
2 The text of 501 KAR 6:999 does not appear on the Legislative Research Commission's website. A copy of the then current version of the regulation appears in the printed 2008 Kentucky Administrative Regulations and its existence is confirmed by LRC and Corrections staff.