Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Luther Luckett Correctional Complex (LLCC) violated the Kentucky Open Records Act in its disposition of an October 10, 2016, open records request from inmate Lewis Laroche, Jr. We find no violation of the Act.
Mr. Laroche requested "copy of EOR(s) related to 7-01 DR from 9/4/16," an Extraordinary Occurrence Report related to his altercation with correctional officers at LLCC. The facility's written denial on October 11, 2016, stated: "The Department has determined that the EOR and it's [ sic ] attachments that you request would constitute a threat to the security of inmates, the institution, institutional staff, or others and cannot be provided pursuant to KRS 197.025(1) and KRS 61.878(1)(l) . The EOR contains significant respond [ sic ] information that poses a risk if released to the inmate population or to the public. Due to the nature of the incident and [ sic ] inmate was placed in Emergency Restraint chair. " Mr. Laroche's appeal was received in this office on October 20, 2016.
KRS 197.025(1) provides that "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." 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.
In a response to the appeal dated October 26, 2016, attorney Oran S. McFarlan, III, Justice & Public Safety Cabinet, on behalf of LLCC, explains that an EOR contains "a step by step, minute by minute account of the actions taken by [facility] security personnel after the actions of the inmates were discovered" (quoting 13-ORD-169). He states that "providing the EOR at issue would give away information that could threaten the security of correctional staff and the institution as well as harm the institution's ability to react to and investigate future rule violations or crimes."
More specifically, in an affidavit, Wade Percle with Offender Records at LLCC states the following:
This particular EOR contains information regarding a Use of Force Level 4 ( i.e . restraint chair) as well as the decontamination process following deployment of OC spray. Importantly, the EOR also contains information about which staff members and contract personnel responded to the incident at issue as well as how they responded and their assignments. Releasing this kind of information to an inmate would create a security risk by revealing (a) how staff responds to such incidents, (b) the security details, and (c) the methods of investigation. LLCC also wants to protect any officers who responded to the incident from the threat of future retaliation.
We have previously affirmed denials of Extraordinary Occurrence Reports under KRS 197.025(1). ( See, e.g. , 12-ORD-123 and authorities cited therein.)
Under the facts presented, we find that LLCC has articulated a credible basis for withholding the EOR 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. 04-ORD-017. Consistent with the foregoing precedent, we conclude that LLCC did not violate the Open Records Act in denying access to the requested EOR 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.