As conspiracy theorists run amok, an attorney who I have not met — but with whom I clearly share a belief in the value of open government laws — suggests a very practical use of the federal Freedom of Information Act to confirm or refute one of the theories circulating about Jeffrey Epstein's death.

Jay Hurst shared this Washington Post article, dated August 11, and titled, "'It was inevitable ': Officers watching Epstein were on overtime due to jail staff shortage, union president says," on Facebook and attached a FOIA request he emailed to the U.S. Department of Justice one day earlier.

In the article, a local corrections staff union officer states that the two correctional officers assigned to monitor Epstein at the time of his death were working overtime, "one forced to do so by management, the other for his fourth or fifth consecutive day." The staff is operating at less than 70% of the needed correctional officers.

In his request, Hurst asked for "a listing of Bureau of Prisons employees and contractors stationed at or otherwise posted to Metropolitan Correctional Center [in which Epstein was confined] by shift if possible" and "a listing of unfilled positions of any kind (full-time, part-time, contract and everything else) at MCC New York."

Hurst asked for expedited processing of his request "to inform the public concerning the actual government activity surrounding an alleged suicide in the MCC New York. Further, this request concerns other issues of widespread and exceptional media interest after the death of pretrial detainee Jeffrey Epstein, and the information sought involves possible questions about the government's integrity which affect public confidence, to wit: whether understaffing levels contributed to this, and perhaps other, deaths at the MCC New York."

Hurst is a Kentucky lawyer with offices in Durham, North Carolina, who focuses on, among other things, federal inmate custody issues.* He hopes to call attention to the "decades-old understaffing problem at the Federal Bureau of Prisons" that has led to the murders and suicides of unknown numbers of detainees and prisoners as well as to the BOP FOIA Project he spearheads (http://www.victorvillefoia.org/ ).

And we want answers.

Of course, I'm inclined to analyze the records access issues under state open records law. Kentucky has erected nearly insurmountable barriers to access to information relating to security in state correctional facilities.

KRS 197.025(1) states that "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." The statute vests broad discretion in the commissioner or his designee and it is liberally invoked to deny both inmates and the public access to records such as those requested by Jay Hurst.

It would come as a great surprise to me if the Department of Corrections released the type of information Hurst is requesting on the theory that disclosure of the fact of prison understaffing would threaten institutional security.

Moreover, Hurst would most likely be rebuffed on a technically in Kentucky since he requested "listings." Kentucky's law does not obligate public agencies to create lists if none currently exists (though automated record keeping makes this issue considerably "grayer" than it once was).

The federal Freedom of Information Act is an "information" access law. The Kentucky open records law is a "records" access law that imposes no burden on Kentucky's agencies to create records to fulfill a request.

The only advantage Kentucky's law has over the federal law is "turnaround" time. FOIA allows federal agencies twenty days to respond to a request, but this deadline is virtually never observed. Hurst himself does not seem too optimistic that the Bureau of Prisons will grant his request for expedited processing.

Kentucky has no provision for expedited processing, but our "turnaround" time is three working days. Sadly, that law (yes, l-a-w) is treated by many of Kentucky's agencies as merely "aspirational." But a response from a Kentucky agency is nearly certain to reach a requester before a response from a federal agency.

In any case, its now a waiting game for Hurst and the rest of us as we await information relating to Epstein's death and what role understaffing may have played in his demise.

*In a comment, Hurst clarified that he is not authorized to practice in Kentucky's courts.