Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Keith D. Phillips in connection with his attempts to obtain copies of various documents.
Apparently on one or more occasions in February of 1994, Keith Phillips requested from the Luther Luckett Correctional Complex copies of the invoices involving the inmate canteen which would indicate the prices paid for various items.
In a memorandum from the warden, Tom D. Campbell, dated March 1, 1994, Mr. Phillips was advised that on the advice of counsel and in reliance upon the provisions of KRS 61.878 (1) and KRS 197.025, his request for copies of the documents was denied. The memorandum stated that having reviewed Keith Phillips' institutional record, his current convictions, and his repeated behavior of defrauding individuals and companies, the requested material would not be made available.
Keith Phillips' letter of appeal was received by this office on March 4, 1994. He takes exception to Warden Campbell's decision, maintains that the statutes cited do not apply, and asks what information on an invoice could be a threat of any sort to security.
The undersigned Assistant Attorney General talked by telephone on Friday, March 11, 1994, with Susan Alley, Esq., legal counsel for the Department of Corrections. Ms. Alley reaffirmed the Department's reliance upon KRS 197.025 and its application to the particular facts of this situation. Factors such as Keith Phillips' criminal record, his history of defrauding persons and firms, and his knowledge of computers led the Department to conclude that the release of the requested information to him would constitute a threat to any company or person named in that material.
KRS 61.878(1) sets forth the records which can be or should be excluded from public inspection. KRS 61.878(1)(k) provides that "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are to be excluded from the application of the provisions of the Open Records Act.
KRS 61.871 states in part that the exceptions to public inspection provided for by KRS 61.878 or otherwise provided by law are to be strictly construed. While this office attempts to strictly construe the restrictions set forth in KRS 61.878, the provisions of KRS 197.025 are broad in scope and invest the warden of a correctional institution with a great deal of discretion.
KRS 197.025 provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility under the jurisdiction of the Department of Corrections shall have access to any records relating to himself, or any inmate, or any other records, if the disclosure is deemed by the warden and treatment staff to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
In the situation under consideration the warden has deemed the release of the requested information to be a threat to another person. This is based upon the criminal record of the requester and his having committed previous acts of defrauding persons as well as his knowledge of computers. This office is not in a position to second guess the warden or to conclude that he has abused his discretion on the basis of the available facts and evidence.
It is, therefore, the decision of this office that the decision of the warden of the institution under the jurisdiction and control of the Department of Corrections to not release the documents requested is supported by the provisions of KRS 61.878(1)(k) and KRS 197.025. See OAG 92-26, copy attached.
Keith D. Phillips may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any action filed against the Department of Corrections pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.