Request By:
Mr. Kelley D. Wiseman
Records Custodian
Kentucky State Penitentiary
Eddyville, Kentucky
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Earl McFall, inmate legal representative, has appealed to the Attorney General, pursuant to KRS 61.880, on behalf of John Ealy, #88479, your denial of the request to inspect various documents in John Ealy's institutional file.
In a request dated June 8, 1987, John Ealy, or someone on his behalf, made the following request to inspect documents: "Any allegations in my folder concerning any inmate or staff employee, conflict of interest against any inmate or staff employee, transfer authorization form."
Apparently a copy of the "Transfer Authorization Form" was obtained as no further mention is made of that document.
However, in regard to the disposition of the remainder of the request you made the following notation on the request form above your signature of June 9, 1987:
"There isn't any documentation on your file dealing with allegations concerning staff or inmates, conflict of interest against staff. The conflicts with other inmates are considered confidential."
In his letter to the Attorney General dated June 10, 1987, and received June 15, 1987, Earl McFall directs this office to require you to provide he and "his client" with "any conflict with inmate and/or employee with the supposed conflict names blanked out (deleted), or direct the warden, Gene A. Scroggy to have designated personnel to bring John Ealy his complete folder to the inmate compound and let him observe this folder with his own eyes."
The undersigned Assistant Attorney General is not familiar with prison forms and procedures. Furthermore, your explanation of the disposition of the request was very brief, the sections of the Open Records Act upon which you relied in denying the request were not cited and a copy of your letter of denial was not sent to this office. In an attempt to gather additional facts about the documents requested and institutional policy relative to such documents, I talked with you by telephone on June 17 and 18, 1987, and I talked by telephone with David Sexton, Esq., of the Corrections Cabinet legal staff on June 18 and 22, 1987.
You said in part that there are numerous conflict sheets in the file of John Ealy. These sheets do not represent final agency action on any matter but merely contain the opinions of persons relative to what they perceive as to conflicts involving Ealy and other people. Releasing these names could affect the security of the institution as well as the safety and security of Ealy and the specifically named individuals as many of these people would be considered informants. It would not be practical or wise to merely blot out the names and release the remainder of the document as enough pertinent information is usually available to identify the person without the name being given.
David Sexton, Esq., stated in part that the so-called conflict sheets are actually "special notice forms." They are records which attempt to document conflicts between and among prisoners and between prisoners and others such as the staff of the institution. They are opinions and statements of persons which are considered along with other matters in connection with classification decisions (the custody level at which the inmate is classified) and in connection with where a prisoner should be placed and the kind of programs in which he may participate. These conflict sheets or special notice forms contain information which comes from inmates, the staff of the institution, the PSI forms, jailers or from prior incarceration documents. The information may or may not be reliable depending upon the source.
OPINION OF THE ATTORNEY GENERAL
At the outset we direct your attention to KRS 61.880 (1) and (2). These provisions in part require that the public agency's letter of denial set forth the specific exception to public inspection upon which it is relying and a brief explanation of how the exception applies to the document withheld. In addition, the public agency is required to immediately send a copy of its written response denying inspection of a public record to the Attorney General.
In this particular situation you did not comply with either of the requirements noted above. This office presumes that you and the institution will adhere to those provisions in the future and that the necessary steps will be taken to ensure compliance with all statutory requirements of the Open Records Act.
Part of your response to the request to inspect records indicated that some of the items requested do not exist. This is obviously a proper response as you cannot furnish that which you do not have or that which does not exist. A request for those kinds of items is moot. We then are left to deal with whether or not you properly handled the request for the conflict sheets or the special notice forms.
Among those public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those set forth in KRS 61.878(1)(a), (g) and (h):
"(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
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(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
"(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
In OAG 82-395, copy enclosed, we said that information about the confiscation of inmate property would generally be exempt from mandatory public disclosure because of the privacy rights of the inmates involved outweighing the need of the public to be informed.
This office has said in regard to the privacy exemption and the evaluation of a person that an evaluation is a matter of opinion and standing alone does not constitute any action on the part of the public agency. Records of an evaluative nature have been consistently exempted from public inspection as a protection against an unwarranted invasion of personal privacy. The privacy right protects both the subject of and the creator of the document of evaluation. See OAG 86-15, copy enclosed, at page four and OAG 85-135, copy enclosed at page two.
In connection with KRS 61.878(1)(g) and (h) this office has stated that records consisting of an abstract of interviews pertaining to a particular person (a compilation of unsubstantiated opinions obtained from one person about another person) were properly excluded from public inspection pursuant to KRS 61.878(1)(h). Furthermore, witness statements which did not serve as the complaints which spawned an investigation were preliminary documents and properly excluded from public inspection pursuant to KRS 61.878(1)(g) and (h). Again, see OAG 85-135, at page three.
A memorandum prepared by a public officer containing his opinions and evaluations as well as the opinions and evaluations of persons he spoke with, does not represent final action by a public agency when it is submitted to some other officer who actually makes the decision on the matter. Such a document may be excluded from public inspection. See OAG 86-19 and OAG 85-90, copies of which are enclosed.
It is, therefore, the opinion of the Attorney General that you acted properly in denying the inmate's request to inspect conflict sheets or special notice forms in his institutional file as such documents, which do not represent final agency action, which contain opinions of various persons from various sources and which may affect the security of the institution and the safety of the inmates and staff, may be withheld from public inspection pursuant to KRS 61.878(1)(a), (g) and (h).
As required by statute a copy of this opinion is being sent to the requesting party's legal representative, Earl McFall, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880.