Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Summary : Kentucky State Penitentiary did not violate the Open Records Act because inmate requester failed to precisely describe the records being sought, as required by KRS 61.872(3)(b). The mistaken release of same or similar photographs by another correctional facility did not estop Kentucky State Penitentiary from enforcing policy and withholding photographs as contraband.
Open Records Decision
On January 24, 2018, the Kentucky State Penitentiary ("KSP") responded to an open records request from inmate Chris Hawkins ("Appellant") by sending three (3) pages of records, but denying a request for photographs. For reasons stated herein, we find that the response from KSP did not violate the Open Records Act.
On January 23, 2018, Appellant submitted a Request to View/Obtain Health Information form seeking medical records. Appellant noted on the form that he was seeking three types of documents. First, Appellant requested "all entries in records regarding THRIVE program dated in 2018, including medical approval for transfer to KSR 1 ." Second, Appellant requested a "listing of all current medications with expiration dates reflected." Appellant's third request sought "photos of penis taken at GRCC 2 in 2014 or 2015 and at LSCC 3 in 2016." Appellant did not provide any additional description for the documents he was requesting. The form requires the inmate requestor to mark a box indicating that they either "Request to View" the records, or "Request to Obtain" copies. Appellant marked the form to indicate that he was requesting to obtain copies.
KSP responded to the three requests on January 30, 2018. KSP informed Appellant that the facility was providing "two (2) pages of a progress note from Ms. Tonya Gray in reference to the THRIVE program" in response to the request for records regarding THRIVE. KSP responded to Appellant's second request with "[o]ne (1) page of current medications with expiration dates included." Regarding Appellant's request for photographs, the facility denied the request stating that "[d]ue to the explicit nature of this request, you are being denied per policy 16.2 Inmate Correspondence, which states nudity of the male/ female genitalia, anus, or the nipples or areola of the female breasts are exposed is prohibited." KSP further stated that the "material as stated in the policy above 'poses a threat to the security, good order, and discipline of the institution and may facilitate criminal activity and provide a significant risk of sexual harassment of employees.'"
On February 1, 2018, Appellant appealed the response he received from KSP. Appellant raises two issues in his appeal. First, Appellant argues that emails regarding the THRIVE program were not provided pursuant to his request. Appellant argues that he requested "records" in plural, and KSP should have understood that he was requesting email messages regarding the THRIVE program.
The second issue raised by Appellant is the denial of the photographs. Appellant argues that KRS Chapter 61 and Correctional Policies and Procedures ("CPP") 6.1 provide him with a right to access his medical records. Appellant also submits that the photographs are medical records and "having photos of my medical records does not pose a threat to any 'security, good order, and discipline of the institution[.]'" Appellant also points out that on May 16, 2017, the LSCC medical records clerk provided him with "1 of the photographs of my penis." Appellant claimed that LSCC provided the photograph pursuant to an open records appeal with this office.
KSP responded to the appeal through counsel, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet. Ms. Barker noted that the medical records custodian conducted a search of the entire medical record for entries involving the THRIVE program and provided all related documents. She noted that emails must be "specifically requested because they are not normally maintained in the medical records." Ms. Barker responded to the second issue raised in the appeal stating that the photographs are "exempt pursuant to KRS 61.878(1)(l), KRS 520.010(1) 4, CPP 9.6 5, & CPP 16.2 6." She explained that photographs showing nudity are contraband, pursuant to the definition of the term stated in CPP 9.6 and KRS 520.010. Ms. Barker notes that the definition of "nudity" stated in CPP 16.2 includes a pictorial depiction of the male genitalia. Therefore, KSP correctly excluded the photographs from the request.
Ms. Barker addresses the release of the photograph by LSCC by acknowledging that Appellant was provided a copy of the photograph by that facility. However, Ms. Barker concedes that LSCC's release of the photograph was an error. She states that "[t]he photo should not have been released by the other institution." Ms. Barker argued that KSP should not be bound by the mistake of the LSCC record custodian, stating that "[t]he initial mistake cannot now be compounded by releasing another unauthorized records."
KSP did not violate the Open Records Act when it failed to provide Appellant with copies of email messages related to the THRIVE program. The Act requires the person requesting records to provide the records custodian with a sufficient description of the records requested. KRS 61.872(2) 7 requires, generally, that the requester "describe" the records to which he wishes access. However, KRS 61.872(3)(b) 8 places an additional burden on requesters who wish to access public records by receipt of copies through the mail. The statute requires that a requester must "precisely describe the public records" which he wishes to access. A request must be "specific enough so that a public agency can identify and locate the records in question." 13-ORD-077, p.3 (quoting OAG 89-8). We have found that a requester satisfies the requirement of KRS 61.872(3)(b) when he "describes in definite, specific and unequivocal terms the records he wishes to access[.]" 03-ORD-067, p.5 (citing 97-ORD-46, p.3). Appellant was required to meet this additional burden because he specifically requested copies of the records.
Appellant did not request emails with a precise description as required. Appellant requested "all entries in records regarding THRIVE program," but neither mentioned nor referenced 'emails' anywhere on the request form. In addition, KSP noted that email messages are not ordinarily maintained in a medical file. This request was not specific enough so that the public agency could identify emails as the subject of the request. Because Appellant did not "precisely describe" the records being requested to meet the KRS 61.872(3)(b) standard, we find that KSP did not violate the Act.
KSP provided sufficient justification for finding that the photographs are contraband and denying Appellant's request for copies. The facility informed Appellant that the photographs depicted male genitalia. Appellant was notified that correctional policy specifically defined such photographs as contraband and specifically that they could facilitate criminal activity and sexual harassment of employees. The response to Appellant's appeal supports the explanation in the denial by demonstrating how photographs depicting nudity meet the statutory and the correctional policy definitions of "contraband. " This office has recognized that the Department of Corrections is granted "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 held that the Open Records Act requires the Commissioner or designee to provide "a brief explanation as to how release of the requested records would constitute a threat to the institution or institutional staff." 06-ORD-176 (citing 96-ORD-182). KSP provided a sufficient explanation as to how the release of these photographs would constitute a threat to institutional security.
Finding KSP's explanation sufficient, we find that Appellant's request for photographs was properly denied. This office has recognized that the Department of Corrections is granted "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) 9 allows the commissioner of the department or his designee to determine whether release of a record constitutes a security threat. We generally decline to substitute our judgment for that of the warden or his designees in matters of security policy. See 07-ORD-252; 09-ORD-152; 16-ORD-232. KSP did not violate the Open Records Act when it withheld the requested photographs.
In addressing the issue of the release of a photograph depicting nudity by LSCC, we will accept, for the sake of argument, that the photograph was released to Appellant mistakenly. We also note that LSCC did not release the photograph in response to a decision from this office. Appellant submitted an appeal of a denial of that photograph on May 5, 2017. LSCC responded to the appeal on May 17, 2017 by voluntarily providing Appellant a copy of the photograph before this office addressed the matter in an decision. LSCC did not cite a policy to justify the response, nor did it offer any other explanation for providing the photograph. This office declared the matter moot on May 30, 2017, and declined to render a decision, per 40 KAR 1:030, Section 6. 10
Based on the reasoning in this decision, we find that LSCC inadvertently failed to comply with correctional policies when it released the photograph to Appellant. However, the release of the photograph by LSCC does not bind other records custodians of the department or other correctional facilities. This office has held that an agency's inadvertent actions or mistakes in releasing records does not estop the agency's denial of subsequent requests for similar records. OAG 83-140 (rejecting estoppel argument "since estoppel is not affected by inadvertent actions or mistakes but only by previous actions by which the contrary has been admitted, implied, or determined"); OAG 90-117 (holding that "public records which have been inadvertently released for inspection by non-custodial persons with access to public records does not prohibit an agency from subsequently denying inspection" ); 15-ORD-092. The release of the photographs by LSCC does not estop KSP from enforcing policy and withholding similar documents as contraband.
A party aggrieved by this decision shall 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.
Footnotes
Footnotes
1 KSR" is an abbreviation for the Kentucky State Reformatory.
2 GRCC" is an abbreviation for the Green River Correctional Complex.
3 LSCC" is an abbreviation for the Little Sandy Correctional Complex.
4 KRS 520.010(1) "Contraband" means any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, departmental regulation, or posted institutional rule or order.
5 CPP 9.6 "Contraband" is defined by KRS 520.010 and includes items described in subsection II.B below.
6 CPP 16.2 "Nudity", for purposes of this policy only, means a pictorial depiction where male or female genitalia, anus, or the nipples or areola of female breasts are exposed.
7 KRS 61.872(2) states: "Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency."
8 KRS 61.872(3)(b) states: "A person may inspect the public records: By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing."
9 KRS 197.025(1) states: "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."
10 40 KAR 1:030, Section 6 states: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter."