Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Kentucky State Reformatory (KSR) violated the Open Records Act in denying David Hoff's request of June 22, 2016 for a "copy of final determination of PREA Investigation done on 5-10-16 concerning sexual assault against myself by inmate Tanner Ball # 242404. Sexual assault occurred on 4-29-16 -- Request made pursuant to 28 CFR 115.73(a). Interview was conducted on 5-10-16 by Captain Noonan of KSR. [ sic ]"
Kentucky State Reformatory's initial response to the request stated:
Your request for the "PREA Investigation done on 5-10-16" (see attached request) is denied.
Per 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 inmate, any other inmate, correctional staff, the institution, or any other person. Releasing any PREA related documents could potentially pose a security threat to any inmates or staff involved in the investigation.
Furthermore, per KRS 61.878(1)(a) the file pertaining to a sexual assault on 4-29-16 constitutes an unwarranted invasion of personal privacy and sensitive information to the other parties involved. Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy are denied.
By letter of June 28, 2016, Mr. Hoff appealed KSR's response to his request for records. In his appeal, Mr. Hoff cited 28 CFR Part 115, the Prison Rape Elimination Act (PREA) and specifically 28 CFR Part 115.73(a). 1 That regulation requires the agency to inform the inmate as to whether the allegation has been determined to be substantiated, unsubstantiated, or unfounded following an inmate's allegation that he or she suffered sexual abuse in an agency facility. Mr. Hoff stated that he was "denied per 197.025(1) KRS 61.870 to 61.884 and KRS 61.878(1)(a) which should not apply in this situation. [ sic ]"
Upon receipt of this office's notification of receipt of the open records appeal, Oran S. McFarlan, III, Attorney, Justice & Public Safety Cabinet, responded, by letter dated July 19, 2016, on behalf of Kentucky State Reformatory. Mr. McFarlan provided a letter, July 18, 2016, from Conner Jeffries, concerning the final results of the PREA investigation at issue. The letter stated that a "further investigation document was located and may be provided to you upon payment through a money authorization. It will be redacted to remove information provided by Tanner Ball for reasons of personal privacy and security risk. KRS 61.878(1)(a) , 61.878(1)(l), KRS 197.025(1). The confidentiality standards contained in the Prison Rape Elimination Act, 42 U.S.C. 15601 et seq. and CPP 14.7, in tandem with KRS 197.025(1) and (2), limit access to PREA investigation records."
Mr. McFarlan's letter also supported the redaction of the investigation report which has now been offered to Mr. Hoff. "Redaction is justified by the confidential nature of the investigation at issue and security and privacy concerns associated with releasing documentation of said investigation." Mr. McFarlan cited KRS 61.878(1)(a) and KRS 197.025(1) as the authority for the redactions. The letter also cited Kentucky Corrections Policy and Procedure ("CPP") 14.7(J): "[a]ll information in a report or investigation of a sexual offense shall be kept confidential. " Mr. McFarlan recognized that this confidentiality policy did not trump an inmate's right to certain documents under the Open Records Act, and that an inmate, alleged to be a victim of a PREA incident, is entitled to some information regarding the results of the investigation.
KSR's original response to Mr. Hoff's request met the minimum procedural requirements in that it cited the appropriate statutes (KRS 197.025(1) and KRS 61.878(1)(a)) and somewhat explained how these exceptions applied to the records withheld or redacted. The response by Mr. McFarlan better illuminates the reasoning behind only providing a redacted version of the investigation report to Mr. Hoff. In particular, Mr. McFarlan cited 12-ORD-123 for supporting the need to protect information about how prison investigations are conducted:
Similarly, the results of an investigation should not be required to be disclosed to the appellant[.] Investigatory programs rely on confidentiality not only of sources, but also of techniques and methods. The records sought by the appellant explain methods used by correctional investigators to conduct investigations. Revelation of this information to the appellant will expose these methods to scrutiny and familiarization by other inmates. Such awareness will undermine the ability of investigators in this and other state prison facilities to successfully conduct investigations. In the long run, such compromises will weaken facility safety and security.
Mr. McFarlan also cited 15-ORD-208, to further support a correctional facility's prerogative to redact certain information from a PREA investigation report prior to providing the document to an inmate. "Based on the authorities cited by counsel, we agree that disclosure of records, or portions of records, identifying witnesses, medical professionals, and staff who were questioned in the course of the investigation posed a threat to the security of those individuals and might also threaten security by revealing investigatory techniques and methods." 15-ORD-208, p. 3-4.
Connor Jeffries' supplemental letter, attached to Mr. McFarlan's response letter to this appeal, mentioned "additional records for your request ? have been located" and that "a further investigation document" may now be provided to Mr. Hoff, with appropriate redactions, and upon payment through a money authorization. From the facts presented, this Office is unable to determine whether there may have been a procedural violation in not offering to provide the document(s), with appropriate redactions, in response to the original request from Mr. Hoff. As that document has now been offered, we will defer to the KSR's reasonable exercise of discretion on that matter.
We affirm KSR's partial denial of Mr. Hoff's request based on KRS 197.025(1), as incorporated by KRS 61.878(1)(l) . The statute, KRS 197.025(1), prohibits inmate access to records that are deemed to threaten the security of inmates, correctional staff, or the institution. 16-ORD-089.
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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