Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : Northpoint Training Center properly relied upon KRS 197.025(1) and 197.025(2), both of which are incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in withholding certain records and redacting certain portions of the Extraordinary Occurrence Report, because disclosure would constitute a legitimate security threat and the records lacked a specific reference to inmate requester.
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in the disposition of Jason Lindbloom's June 7, 2019, request for a "copy of the full report regarding the investigation of Jason Lindbloom['s] visitors on 5/11/19. All documentation regarding this investigation, photos included." Consistent with existing legal authority construing KRS 197.025(1) and 197.025(2), incorporated into the Act per KRS 61.878(1)(l), this office affirms the agency's ultimate disposition of the request.
The NTC Open Records Coordinator stamped the request as received on June 10, 2019, and Offender Information Specialist I Krysta Nevels issued a timely written response per KRS 197.025(7) on June 17, 2019. However, she advised that NTC would "require additional time" in which to retrieve the documents requested, specifically, until on or before June 21, 2019. 1By letter directed to Mr. Lindbloom on June 20, 2019, Ms. Nevels advised Mr. Lindbloom that NTC staff had reviewed the "records that are part of the EOR [Extraordinary Occurrence Report] and a redacted copy of it (6 pages) will be provided to you." Citing KRS 61.878(1)(l) and 197.025(1), she further explained that excerpts from the EOR, "including response information and security references" were redacted as disclosure would constitute a "threat to the security of inmates, the institution, institutional staff, or others[.]" She further explained that three of the reports and one photograph attached to the requested EOR did not contain a specific reference to him, and thus were protected from disclosure under KRS 61.878(1)(l) and KRS 197.025(2).
Resolution of this appeal turns partially on the application of KRS 197.025(1), pursuant to which: "KRS 61.884 and 61.878 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." By enacting KRS 197.025(1), "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 03-ORD-190; 17-ORD-097; 19-ORD-110.
In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3; 03-ORD-190. Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2 (emphasis added); 03-ORD-190; 19-ORD-110. Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from the public for a variety of records based on KRS 197.025(1), including, but not limited to: extraordinary occurrence reports (07-ORD-039, 16-ORD-071, 17-ORD-097); personnel statements contained in EORs (10-ORD-056, 10-ORD-063, 12-ORD-123); information regarding other individuals contained in EORs (08-ORD-251); conflict sheets (OAG 91-136, 11-ORD-177); and psychological evaluations of inmates (92-ORD-1314). The instant appeal presents no basis to depart from this well-established line of authority.
Here, NTC determined, in a proper exercise of its discretion, that disclosing portions of the requested EOR concerning staff responses to such incidents would pose a security threat to NTC staff, other inmates, and the institution. The Attorney General has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 96-ORD-179; 00-ORD-125; 11-ORD-177. As before, this office declines to substitute its judgment for that of the correctional facility or DOC. In sum, NTC properly relied upon KRS 197.025(1) in withholding the specified portions of the requested EOR. See 19-ORD-110.
In addition, NTC properly relied upon KRS 197.025(2) in withholding any report or picture that did not contain a specific reference to Mr. Lindbloom and in redacting certain portions of the EOR that lacked any reference to him. 2This office has consistently recognized that KRS 197.025(2) expressly authorizes correctional facilities like NTC to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. See 00-ORD-040; 10-ORD-136; 12-ORD-070. Inasmuch as the records (or portions thereof), including photographs, do not contain a specific reference to him, as required under KRS 197.025(2), Mr. Lindbloom is not entitled to access those records, notwithstanding his underlying concerns. Rather, he is expressly precluded from gaining access to records (or portions thereof) which do not contain a specific reference to him by the mandatory language of this provision. Accordingly, NTC also properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in partially denying his request.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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 KSP implicitly relied upon KRS 61.872(5) in delaying its final response. However, the need to retrieve and review the records in dispute is not a sufficiently detailed explanation. See 15-ORD-029; 19-ORD-054. "Although KRS 197.025(7) modifies the three-day period [of KRS 61.880(1)] to a five-day period, the requirement to provide the detailed explanation is not negated." 17-ORD-262, p. 2 n. 1; 19-ORD-089. See 18-ORD-144 (KRS 197.052(7) modifies the statutory period for a response by DOC and the agencies under its jurisdiction, but "KRS 61.872(5) requirements continue to apply to correctional facilities [and DOC]"); 18-ORD-074. The analysis of KRS 61.872(5) in 19-ORD-054 is controlling on this issue.
2 KRS 197.025(2) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.