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 Eastern Kentucky Correctional Complex ("EKCC") properly relied on KRS 197.025(1) in denying inmate DeShawn Johnson's request for documentation underlying his security threat group (ST(j) status. For the reasons stated below, we find no violation of the Open Records Act.
Mr. Johnson's request, dated November 21, 2017, and received on November 27, 2017, sought any record "which includes any and all documentation pertaining to and/or surrounding and/or relied upon to list me, the undersigned, as a 'Certified' Security Threat Group (ST(j) as recorded in an incident Report Summary by John D. Vaught on 10/19/2017, report # EKCC-2017-10-077." On November 29, 2017, Offender Information Specialist Tammy Skinner denied the request, explaining as follows:
It has been determined by the Department that records you request would constitute a threat to the security of other inmates, the institution or institutional staff, and cannot be provided. The Department makes decisions concerning security risks under authority of KRS 197.025 and KRS 61.878(1)(l).
The Security Threat Group Assessment contains the criteria and factors that are considered when determining if inmates are associated with gangs or other groups. By providing this information it could reveal the areas that are focused on and provide inmates with key factors that could give them advantage to manipulate the assessment. Based on this your request is denied.
Mr. Johnson's appeal was received in this office on December 6, 2017.
KRS 197.025(1) specifically 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.
In a response to the appeal dated December 15, 2017, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, explains further the facility's position:
Releasing security threat group (ST(j) information is a security risk. STG status may address past or current gang association. Gangs can be a significant risk factor in a prison. The more information that the Department of Corrections (DOC) has to understand inmate associations and combat gangs or other threat groups and the least amount of information that can be provided to inmates and others concerning how the DOC evaluates these associations are the goal to increase security at a prison. In this case, the information about the STG status of the requesting inmate should not have been released. . . . The initial mistake cannot now be compounded by releasing the records behind an inmate's STG status. Part of the concern are the details concerning the criteria and factors considered by the DOC in making the assessment as much or in some cases more than the actual details for the specific inmate. [T]he responsive records contain criteria and factors that are considered in determining gang or threat group association. Releasing the information contained in the responsive records could allow inmates to manipulate results of the review, causing the DOC to have less useful information and monitoring capability for security purposes.
In a memorandum dated December 15, 2017, DOC Unit Administrator Christopher Banks further explains: "Part of gang culture is brotherhood and power. Gang activity within a prison can involve drugs, assaults on inmates, and murder. Staff who respond to these attacks can also be harmed. DOC staff have to consider any STG information in housing, transfers, allegations of conflicts, and other security matters."
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 have previously upheld the denial of records relating to STG status and gang affiliation under KRS 197.025(1). 16-ORD-070; 16-ORD-023. Furthermore, the fact that Mr. Johnson's STG status was mistakenly disclosed does not require the facility to "compound the error" by releasing the information and criteria that formed the basis for that determination. Cf. 09-ORD-087. 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.) Under the facts presented, we find that EKCC has articulated a credible basis for withholding this information in the interest of security. Consistent with the foregoing precedent, we conclude that EKCC did not violate the Open Records Act in withholding these records 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.