Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that although Northpoint Training Center's original responses to Johnny Phillips' February 23 and 24, 2015, open records requests were partially deficient, those deficiencies were corrected on appeal. Northpoint's reliance on KRS 61.878(1)(i) and (j) as the basis for withholding administrative notes relating to Mr. Phillips' transfers finds support in past Open Records Decisions as does its reliance on KRS 61.878(1)(l), 1 incorporating KRS 197.025(1), 2 as the basis for withholding security camera footage and staff conflict reports and records.
KRS 61.880(1) and KRS 61.872(4) establish requirements for agency response to an open records request. KRS 61.880(1) provides:
An 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
These provisions, among others, govern disposition of an open records request.
On appeal, Northpoint identifies a number of deficiencies in its original responses. Northpoint acknowledges that, in its original response, it failed to notify Mr. Phillips that no records exist that are responsive to his request for all transfer notes entered into KOMS. 3 Northpoint corrected this deficiency on appeal, verifying the nonexistence of any transfer notes in KOMS by producing the blank KOMS Transfer Notes form as well as an affidavit from the Corrections Program Administrator verifying that the inclusion of notes is a matter of staff discretion and "not required to accomplish a transfer." In support of its position that an agency cannot produce records that do not exist, Northpoint cited a line of open records decisions affirming agency denial of records requests based on the nonexistence of responsive records. Mr. Phillips' subsequent unsubstantiated assertion that "[o]bviously, there [are] records establishing the medical needs, program needs, classification needs, etc., for the utilization of state funds for said purpose of these transfers," was not sufficient to rebut the nonexistence of the records which Northpoint argued, albeit belatedly. Additionally, Northpoint acknowledged that, in its original response, it failed to notify Mr. Phillips that because it did not have access to all records that might be responsive to his request for staff conflict records and reports "he should contact Brandi Hawkins, Department of Corrections, P.O. Box 2400, Frankfort, KY 40602-2400." Having provided Mr. Phillips with the name and location of the custodian of other potentially responsive records he sought in its response to his appeal, Northpoint corrected this omission and satisfied the requirements of KRS 61.872(4).
In addition to these deficiencies, we note that Northpoint failed to strictly comply with the requirement, found at KRS 61.880(1) , that it both cite the exemption authorizing nondisclosure of the records withheld and briefly explain how the exemption applies to those records. For example, in denying Mr. Phillips' request for security camera footage from a specified location on a specific date, Northpoint cited KRS 61.878(1)(l) and KRS 197.025(1) but did not explain why disclosure of the footage was "identified as a security threat." On appeal, Northpoint offered a persuasive explanation for its decision to withhold the footage:
Video taken at the prisons contains information that may directly affect the security of the institution including methods or practices used to obtain the video, the areas of observation and blind spots for the cameras, etc. It is impossible for NTC to redact the tape and eliminate the security concerns. The Office of the Attorney General has found that prison video may be withheld for security reasons. See 15-ORD-010, 13-ORD-033, 08-ORD-082, 04-ORD-017.
Although Northpoint did not acknowledge this deficiency in its response to Mr. Phillips' letter of appeal, it nevertheless corrected the deficiency. The facility should be guided by the requirements set forth in KRS 61.880(1) and KRS 61.872(4), inter alia , in responding to future open records appeals.
We find no error in Northpoint's denial of Mr. Phillips' remaining requests. 4 The facility correctly observed that the Attorney General has affirmed past denials of inmate requests for unapproved transfer authorization forms, and related notes, on the basis of KRS 61.878(1)(i) and (j). As recently as May 26, 2015, this office found no violation of the Open Records Act by a correctional facility that relied on KRS 61.878(1)(j) to deny access to transfer authorization forms containing recommendations for transfer that were rejected by DOC's Central Office. See 15-ORD-092. Based on 09-ORD-088, we characterized the content of these forms as "preliminary recommendations. " Because they were "not implemented," they were "not adopted as the basis of final action" and retained their preliminary character. Accord, 12-ORD-218.
Similarly, we find no error in Northpoint's refusal to disclose security camera footage and staff conflict records and reports based on KRS 197.025(1). This confidentiality provision is incorporated into the Open Records Act by KRS 61.878(1)(l) and stands as an absolute bar to disclosure of records deemed by the Commissioner of the Department of Corrections, or his designee, "to constitute a threat to the security of an inmate, any other inmate, correctional staff, the institution, or any other person." Aside from the deficiency cited above, and largely corrected by Northpoint on appeal, we find that its reliance on KRS 197.025(1) to justify nondisclosure of security footage and staff conflict records and reports is clearly supported by past open records decisions identified in its supplemental response. See, e.g., 15-ORD-010; 13-ORD-033.
Finally, we affirm Northpoint's denial of Mr. Phillips' request for records relating to conflicts between Mr. Phillips and DOC staff. In 11-ORD-181 we quoted Kentucky State Reformatory's argument that:
When a correctional facility produces a record of a conflict regarding any combination of correction officer and/or inmate, it is a record which a Warden may, in the Warden's discretion, withhold from disclosure under KRS 197.025(1) , since disclosure of the record to the inmate would constitute a threat to the security of the institution and the individual employees whose job is to supervise the inmate.
11-ORD-181, p. 2. Citing OAG 91-136, in which we recognized that a conflict sheet between inmates could lead to retaliation and therefore could reasonably be deemed to pose security risks, we concluded that this reasoning would also apply to a conflict sheet involving an inmate and correction staff. Accord, 11-ORD-177 and 11-ORD-216. Northpoint's reliance on KRS 197.025(1) was consistent with prior open records decisions issued by this office.
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)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
2 KRS 197.025(1) authorizes the Commissioner of the Department of Corrections, or his designee, to determine if the disclosure of a record constitutes a security threat and thereafter deny access to the record.
3 Kentucky Offender Management System.
4 As noted, Northpoint provided Mr. Phillips with nonexempt public records upon submission of his appeal including the record referred to as "External Movements" and the "Transfer Notes" page from KOMS containing no entries.