Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Arthur N. Pruitt, Sr., appeals Kentucky State Reformatory's denial of his requests for records. 1 On May 11, 2016, Mr. Pruitt requested "emails/ KOMS from warden [] or chaplain" discussing the reasons his request to attend his brother's funeral was denied. Relying on KRS 197.025(1), KSR denied his request as "a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." 2 On May 16, 2016, Mr. Pruitt requested "[p]hone call transcripts from 5-3-16 @ 9:00 - 10:40 a.m. in Dorm A phone/ post # 51." KSR originally denied this request on the basis of KRS 197.025(1), explaining that "[p]hone records,...including transcripts, are created and maintained for the purpose of institutional security." KSR later modified this position advising that "[t]ranscripts are not normally made of phone conversations and were not made in this case. No transcript exists to provide or to review for application of the security exception." Mr. Pruitt initiated his appeal of KSR's denials on May 26, 2016. The appeal reached the Office of Criminal Appeals on May 31, 2016, was forwarded to the Office of Civil and Environmental Law on June 8, 2016, and is therefore not time-barred.
In supplemental correspondence, KSR reaffirmed its reliance on KRS 197.025(1) as the basis for denying Mr. Pruitt access to communications concerning the denial of his request to attend his brother's funeral. In support, counsel for KSR attached KSR Deputy Warden of Security James B. Coyne's affidavit. He stated:
I have reviewed the open record request dated May 11, 2016, in which inmate Arthur Pruitt, 174563 requests "E-mails/KOMS from Warden's or Chaplain reason 'why', I was denied to go to my brother's funeral" . Factors involving the specific inmate, facts surrounding the death of the individual, and the location of the funeral and who may have access to the location must all be considered in a decision about a funeral trip. All funeral trips are reviewed for approval or denial at KSR given the risks of transporting an inmate to a location that is normally well publicized because of the death of the family member. The facts surrounding this specific death were a concern since it was an unsolved shooting. I have reviewed an email to the Chaplain concerning the funeral trip and it discussed security precautions concerning the inmate, which cannot be disclosed to the inmate because the disclosure would make it more difficult for Corrections staff to interact with and handle actions by the inmate. This security information cannot be released beyond Corrections staff.
Deputy Warden Coyne concluded that any further "explanation of the security concerns would give away information to the inmate that would [itself] be a security risk." 3
With respect to transcripts of Mr. Pruitt's phone calls for an hour and forty minute period on May 3, 2016, counsel acknowledged a "miscommunication concerning phone transcripts." Notwithstanding its original response, KSR maintained that transcripts are not regularly, and were not in this case, made. Citing 07-ORD-190, 06-ORD-040, 99-ORD-98, and 09-ORD-129, counsel maintained that because no responsive record exists, KSR could not fulfill Mr. Pruitt's request. Deputy Warden Coyne confirmed the nonexistence of responsive transcripts in his affidavit.
With the exception of its failure to briefly explain how the exceptions cited in its original request supported nondisclosure of the requested records, as required by KRS 61.880(1), we find that KSR did not violate the Open Records Act in the final disposition of Mr. Pruitt's request. As counsel notes, the security exception found at KRS 197.025(1) does, in fact, erect a barrier to records access through KRS 61.878(1)(l) . 4 KRS 197.025(1) provides:
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.
This provision has been the subject of numerous open records decisions but none, to our knowledge, involving records relating to the denial of a request to attend a relative's funeral. See, e.g., OAG 92-25 and 92-ORD-1314 (affirming facility's reliance on KRS 197.025(1) to withhold inmate psychological examinations); 96-ORD-179 (affirming facility's reliance on KRS 197.025(1) to withhold correctional officers' personnel records); 97-ORD-039 (affirming facility's reliance on KRS 197.025(1) to withhold an extraordinary occurrence report); and 11-ORD-177 (affirming facility's reliance on KRS 197.025(1) to withhold conflict sheets). A copy of 11-ORD-177 is enclosed. In enacting KRS 197.025(1) in 1990, "the legislature...created a mechanism for prohibiting...access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3. Deputy Warden Coyne amply demonstrates the potential threats to security that might be discussed in communications concerning an inmate's off-site trip to the funeral location, and we defer to his judgment in this matter.
Although its original response to Mr. Pruitt's request for telephone call transcripts contained a misstatement about the existence of transcripts, KSR ultimately corrected this misstatement, asserting that telephone call transcripts are rarely, and were not in this case, made. No responsive records exist to which Mr. Pruitt may be afforded access. KSR ultimately advised Mr. Pruitt that no telephone calls for the stated period were transcribed and that it could not produce a nonexistent record. Mr. Pruitt offers no proof to rebut KSR's position. Consistent with the position taken in 16-ORD-126, we affirm KSR's denial of Mr. Pruitt's request for telephone call transcriptions. A copy of 16-ORD-126 is enclosed.
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.
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