Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,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 the Department of Corrections properly relied on KRS 197.025(1) in denying public access to its records concerning off-duty employment of Corrections staff, requested by R. G. Dunlop, Kentucky Center for Investigative Reporting. For the reasons stated below, we find no violation of the Open Records Act.
Mr. Dunlop's request, dated April 4, 2016, stated in pertinent part as follows:
. . . I hereby request any information in the cabinet's possession concerning the off-duty employment of Department of Corrections staff, both currently and, if available, since January 1, 2011.
This request is intended to include copies of any and all applications by current (and, if available, since 1/1/11) DOC staff members to work off duty.
If existing DOC records include the names of staff members approved to work off duty, please provide them. If the records include any of the other information I sought in my Feb. 2, 2016, request, please provide that. 1
If existing DOC records contain some information about employees working off-duty, but not anything I have requested above, I would appreciate knowing what "existing records" the DOC has concerning its employees and off-duty employment. And if the DOC has no existing records pertaining to the off-duty work involving any of its employees, either current or former, please inform me of that.
(Emphasis omitted.) On April 11, 2016, Open Records Request Coordinator Mike Caudill responded:
Please be advised that records responsive to your request have been exempted from disclosure by the Commissioner of the Department of Corrections under the "Security Threat" exemption cited in KRS 197.025(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 . . . correctional staff, the institution, or any other person." DOC employees, including correctional officers, could be endangered if inmates or their relatives/associates were able to obtain information about where the employees can be located outside of the prison. Those individuals would then be able to easily confront and/or attack said employees.
(Emphasis added.)
Mr. Dunlop initiated an appeal on April 15, 2016. He argues that the Department should be required to document the occurrence of actual threats in support of its citation of KRS 197.025(1). He further argues that Corrections employees would not be in uniform while working other jobs, and also states that "three metropolitan law enforcement/corrections agencies" have provided him similar information without invoking KRS 197.025(1).
Staff Attorney Catherine M. Stevens, Justice and Public Safety Cabinet, responded to the appeal on April 22, 2016. She reiterates the statements previously made by the Department of Corrections and adds the following explanation:
DOC employees, including correctional officers, could be endangered if inmates or their relatives/associates were able to obtain information about where the employees can be located outside of the prison. Those individuals would then be able to easily confront and/or attack said employees. This issue should be treated no differently than a denial of a request for an employee's home address.
KRS 197.025(1) affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security." 96-ORD-179. We note that this office has previously upheld the denial of personnel records of correctional officers pursuant to this subsection. Id. ; see also 96-ORD-182; 96-ORD-204. Under the facts presented, we find that KSP has articulated a credible basis for withholding this information in the interest of security.
In previous appeals, we have declined to substitute our judgment for that of the facility or the Department of Corrections, and the present appeal presents no reason to depart from this approach. ( See 04-ORD-017 and authorities cited therein.) Consistent with the foregoing precedent, we conclude that the Department of Corrections did not violate the Open Records Act in withholding this information on the basis of KRS 197.025(1).
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.
Footnotes
Footnotes
1 The earlier request referred to here was seeking "each employee's name; DOC job title; dates of request and approval of off-duty employment; a description of the off-duty job by duties and name of employer; the approved number of hours worked; and the duration of the approval (calendar year, etc.)." 16-ORD-052.