Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Green River Correctional Complex (GRCC) violated the Open Records Act in initially denying a request for an email from a former employee whose email account had been deleted. On appeal, the agency located a copy of the requested record and provided the inmate with a redacted copy. For the reasons stated below, we find no violation of the Act by GRCC in its disposition of the open records request.
On February 28, 2017, Kurt Lowe, an inmate at GRCC, filed an open records appeal to GRCC in which he requested: " Unredacted email sent by Sarah R. Whitehouse on Monday 8/1/16 at 11: 55 a.m. and carbon copies to McCracken CD, JCOR and Hopkins CD for the transfer of Kurt J. Lowe # 284794 to GRCC due to adjustment difficulties." Vanessa Dortch, Offender Records Supervisor, GRCC, responded to Mr. Lowe that Ms. Whitehouse was no longer employed by the Department of Corrections. As Ms. Whitehouse was no longer with the Department, her email account with the Department had been deleted and so the requested email was no longer available from that account. Ms. Dortch then directed Mr. Lowe to the agency (Hopkins County Jail) that might have a copy of the email from Ms. Whitehouse.
On appeal, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, provided a response from Ms. Dortch who had been able to locate a copy of the requested record after the appeal was filed. Ms. Dortch explained that she recanvassed the approximately 20 GRCC staff members whom she had initially contacted in searching for Mr. Lowe's requested record, and that the Director of Nursing was able to locate the email in the deleted folder of her email account. The Director of Nursing had not been available during Ms. Dortch's initial search and so had not known of the request for the record until after the appeal was filed. We find no violation of the Act in GRCC's initial search for the email. The search conducted by Ms. Dortch appeared calculated to find the responsive record and the fact that it did not result in finding the email on the first attempt does not appear to be due to lax record keeping on the part of GRCC. Because the disputed email may properly be characterized as general correspondence, and the retention period for general correspondence is "no longer than two years," the record on appeal does not support the inference that the disputed email was prematurely, or otherwise improperly, destroyed by the deletion of Ms. Whitehouse's email account. In the absence of proof that the requested email was prematurely or improperly deleted, we find no violation by GRCC's deletion of the email when Ms. Whitehouse's email account was deleted. See , 06-ORD-022.
Although Mr. Lowe requested an unredacted copy of the email, Ms. Dortch stated that the email was redacted to remove information relating to another inmate that did not reference Mr. Lowe. Ms. Dortch explained the redaction: "Inmates having information about other inmates can cause problems including fights at the institution. Disclosure of the information would constitute a threat to the security of the inmate population, correctional staff, the institution and or other persons." Ms. Barker further elaborated on the redaction, explaining that the information had been redacted both for privacy and security risk pursuant to KRS 61.878(l)(a), KRS 61.878(1)(l), and KRS 197.025(1): "GRCC does not generally allow an inmate to have records containing information about other inmates because of security issues that it can cause. Inmates may become upset to learn that other inmates have records pertaining to them and fights or other violence may occur. This in turn puts staff and other inmates at risk in responding to a fight. In this case, even though the inmate may have received the record in the past, he indicates that he no longer has the record. Having the redacted information in his possession is what creates the risk." Ms. Barker then cited a line of decisions by this office for the proposition that "the discretion afforded the Commissioner in KRS 197.025(1) is broad, and that the Office of the Attorney General should not 'substitute its judgment for that of the correctional facility or the Department of Corrections.'"
KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, 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. KRS 197.025(1) is incorporated into the Open Records Act as permitted under KRS 61.878(1)(l), which exempts "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Under the facts presented, we find that GRCC 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 GRCC did not violate the Open Records Act in redacting this information from the email on the basis of KRS 197.025(1). Having upheld GRCC's redaction on the basis of KRS 197.025(1), we decline to address Ms. Barker's argument for redacting the information pursuant to KRS 61.878(1)(a).
On April 18, 2017, this office received additional correspondence from Mr. Lowe in which he included three "versions" of the email that is the subject of this appeal. Mr. Lowe explained what he perceived as differences in the three versions and requested that this office conduct an investigation into the matter. KRS 61.880(2)(a) provides this office jurisdiction to review open records appeals and issue a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884. That statute does not provide this agency with the authority to conduct investigations into the authenticity of records provided to this office in the course of open record appeals. Therefore we must decline Mr. Lowe's request to investigate the differences he perceives in the copies of the emails he has provided.
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 proceeding.