Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
George Coy initiated this appeal by letter dated February 22, 2016, challenging the failure of the Louisville Metro Department of Corrections ("LMDC") to issue a timely written response upon receipt of his January 20, 2016, request for eight (8) categories of records, including certain telephone recordings, visitation logs, incoming and outgoing mail logs, and his "personnel file to include any certificates earned while in custody" as well as the "[r]esults, dates, and substances tested while in your facility." On appeal Mr. Coy noted that LMDC Records Custodian Ann Cromwell contacted him by telephone and left a message on February 18, 2016, advising that she was "working on his records request." Mr. Coy included a copy of the handwritten telephone message documenting the call that he received on February 18, 2016, in the residential facility where he currently resides. LMDC advised in response to Mr. Coy's appeal that his request was not actually received until February 3, 2016, but asserted that "LMDC contacted Mr. Coy via the phone number he provided within five days of receipt as provided in KRS 197.025 and weekly thereafter, to inform him that LMDC was in the process of gathering responsive records. Regretfully, LMDC did not follow up with a written response explaining and confirming the delay." Even assuming that LMDC contacted Mr. Coy prior to February 18, 2016, a verbal response by LMDC was insufficient. See 12-ORD-180.
LMDC violated KRS 197.025(7) in failing to issue a written response to Mr. Coy's request within five business days of receipt. 1 KRS 197.025(7) extends the deadline for agency response to an open records request submitted to the Department of Corrections from three days (excluding weekends and holidays) , the deadline codified at KRS 61.880(1), to five days (excluding weekends and holidays) . It has been construed to apply to correctional facilities and jails. See 00-ORD-182. However, KRS 197.025(7) has not been construed to relieve the Department of Corrections, correctional facilities, or jails of their duty to issue a timely written response to an open records request. Id. Mr. Coy's request was received on February 3, 2016, and LMDC did not issue a written response until February 29, 2016, the date on which this office received his February 22, 2016, appeal. This inaction by LMDC constituted a violation of KRS 197.025(7). In addition, LMDC violated the Act in failing to provide Mr. Coy with a "detailed explanation" of the cause for delaying access to any existing responsive documents and the specific date on which those documents would be made available, in writing, per KRS 61.872(5). 2 See 12-ORD-137, p. 3; 16-ORD-018.
Notwithstanding these procedural deficiencies, LMDC ultimately notified Mr. Coy that he was being provided with forty (40) pages of documents responsive to his request by letter dated February 29, 2016, 3 withholding only the "actual recordings" of telephone calls responsive to his request on the bases of KRS 197.025(1) and (2), 4 incorporated into the Open Records Act by operation of KRS 61.878(1)(1), 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. The record is unclear as to how KRS 197.025(2) would prohibit disclosure of recordings of telephone calls made from or to Mr. Coy. Nevertheless, prior decisions of this office validate the agency's invocation of KRS 197.025(1) to justify withholding inmate telephone recordings. Having consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in determining whether disclosure of certain records would constitute a threat to the security of the inmate requester, any other inmate, the correctional staff, the institution, or any other person, this office has declined to substitute its judgment for that of the Department of Corrections or local facilities. See 05-ORD-034; 10-ORD-005; 11-ORD-170. In 07-ORD-182, this office affirmed the denial by LMDC of a request similar to Mr. Coy's insofar as it asked for inmate telephone recordings and logs, on the basis of KRS 197.025(1). As recently as June 2015 this office again deferred to a determination by the Director of LMDC that release of inmate telephone recordings constituted a security threat within the contemplation of KRS 197.025(1), following 07-ORD-182 and 11-ORD-170, but noting that when "it is not apparent how disclosure of the records represents such a threat, the agency should satisfy its statutorily assigned burden of proof by generally explaining why disclosure threatens security, taking all necessary precautions to avoid defeating the purpose for which the provision is invoked." 15-ORD-101, p. 4. The instant appeal presents no basis to depart from 15-ORD-101 or the decisions upon which it was premised. Accordingly, this office affirms the agency's ultimate disposition of Mr. Coy's request.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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 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.
2 Pursuant to KRS 61.872(5):
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
3 LMDC initially advised that a "signed HIPAA release" was required for disclosure of "medical results or testing due to HIPAA requirements and confidentiality." However, upon receipt of a request for clarification by this office, counsel for LMDC advised that Ms. Cromwell had acquired the medical records and notified Mr. Coy that "the records are available for his review." By e-mail dated March 25, 2016, counsel for LMDC advised that Mr. Coy's representative was provided with all existing responsive "medical records" that morning; accordingly, the related issues are moot per 40 KAR 1:030, Section 6.
4 KRS 197.025(1) and (2), respectively provide as follows:
(1) 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.
(2) KRS 61.870 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.