Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Department of Corrections' actions regarding Mr. Jeffrey A. Guelda's open records request for copies of certain records of the Department.
By letter dated August 12, 1996, Mr. Guelda requested copies of Kentucky Administrative Regulations, 501 KAR 2:020 - 501 KAR 2:060 and copies of any complaints and reports regarding deficiencies at the Floyd County Detention Center for the last six months or since its inception. In his request, Mr. Guelda states that these complaints should include, but not be limited to, harassment, verbal threats, denial of medical and dental treatment, access to courts, and physical abuse by F. C. D.C. officials or employees.
In his letter of appeal to this office, dated September 22, 1996, Mr. Guelda states that as of that date, he had received no response to his request.
On September 24, 1996, this office notified the Department that Mr. Guelda had initiated an open records appeal in this matter. On that date, we sent a "Notification of Receipt of Open Records Appeal" and enclosed a copy of Mr. Guelda's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, the Department provided this office with responses to the issues raised in the appeal.
By letter dated September 26, 1996, Ms. Tamela Biggs, Staff Attorney, Department of Corrections, provided this office with a response and a copy of a letter, also dated September 26, 1996, in which the Department responded to Mr. Guelda's request.
In her response to this office regarding the issue that the Department had not responded to Mr. Guelda's request, Ms. Biggs stated that, until she received this office's Notification and a copy of Mr. Guelda's letter of appeal, she was unaware that a response had not been forwarded within the requisite three days.
By separate letter, dated October 1, 1996, Mr. Chuck Hughes, Assistant Director, Department of Corrections, provided a response to this office in which he explains that the Division of Local Facilities of the Department, where he is employed, is charged with inspecting and investigating county jails and can only investigate inmate complaints regarding Kentucky Jail Standards. He states that Mr. Guelda had written requesting to be transferred from the Floyd County Jail; that he had been shoved in a broom closet for asking for legal resources; and that he had filed suit against the Floyd County Jail in federal court over the incident. Mr. Hughes further states that since Mr. Guelda had indicated he had filed suit over the incident in federal court, he felt it was necessary to receive a formal subpoena or request from the court before furnishing documents involving the Department of Corrections. Mr. Hughes states that after he received Mr. Guelda's request, he discussed the request with Ms. Biggs, and she advised him that only the investigation specifically pertaining to Mr. Guelda could be released to him. He indicates that he should have been aware of the three day response time and his failure to observe the requirement was unintentional.
In the Department's September 26, 1996 response to Mr. Guelda's open records request, Ms. Biggs states:
It has been brought to my attention that you did not receive a response to the referenced request from Mr. Hughes. Enclosed please find copies of the requested documents. Due to the elapse of time, you shall not be required to pay the normal copy fee and postage for same.
Please be advised that your request for copies of any complaints and reports regarding deficiencies at the Floyd County Detention Center is denied pursuant to KRS 61.878(1)(a), (h), (j) and (l) and KRS 197.025. Any complaints and/or reports may contain (1) personal information which would constitute an unwarranted invasion of privacy; (2) information regarding an investigation, including the identity of confidential informants or result in the premature release of information; and (3) preliminary recommendations and/or opinions. KRS 61.878(1)(l) exempts from disclosure records which are restricted or made confidential by an enactment of the General Assembly. KRS 197.025(1) 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 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." (emphasis added) The release of these records could constitute a threat to the security of the inmates and/or staff named therein or the institution. The Department does not release copies of complaints, conflict sheets, etc., to anyone other than the inmate making such claims.
A copy of this response is being provided to the Attorney General in partial response to your recent appeal.
We are asked to determine if the Department's actions in responding to Mr. Guelda's request were consistent with the Open Records Act. For the reasons which follow, we conclude that the Department's response, although procedurally deficient, was substantively proper.
KRS 61.880(1) requires that a public agency respond to an open records request within three business days. As noted above, although it was unintentional, the Department failed to meet this requirement and so acknowledged this fact in its responses. This failure to respond within three business days was a procedural violation of the Open Records Act.
Moreover, this office has held that a public agency's duty under the Open Records Act, absent a protective order or other court ordered seal of confidentiality, is not suspended by the presence of litigation. 96-ORD-192. The procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. It is incumbent on the Department to streamline its polices by educating its employees on the requirements of the Act, including the importance of a timely response, as well as timely access to records.
As to the substantive issue, we conclude the Department properly relied on KRS 61.878(1)(l) and 17.025(1) in denying Mr. Guelda's request. KRS 61.878(1)(l) excludes from public inspection:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
KRS 17.025(1) provides:
KRS 61.884 and 61.878 to the contrary not withstanding, no person, including any inmate confined in a jail or any facility under the jurisdiction of the department shall 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.
Ms. Biggs, in her response to Mr. Guelda's request, explained that release of complaints and reports regarding any complaints and reports regarding deficiencies at the Floyd County Detention Center would constitute a threat to the security of the inmates and staff named therein or the institution. She stated that the Department does not release copies of complaints, conflict sheets, etc., to anyone other than the inmate making such claims.
In addition to the above, in the Department's response to Mr. Guelda's letter of appeal, Ms. Biggs further explained the rationale behind the denial of access to any complaints and reports, as follows:
. . . Information or allegations regarding harassment, threats, denial of treatment or access to courts and physical abuse by facility officials and/or employees is exempt from disclosure. The release of any unsubstantiated claims or investigations regarding alleged abuse by facility officials or employees to an inmate has the potential to undermine staff authority, compromise effectiveness and/or place the name individual in risk of retribution or physical harm. If an inmate files a complaint with the Department regarding a staff member or reports a conflict with staff or another inmate, these documents are not released to anyone other than the inmate making the claim.
KRS 17.025(1) vests the commissioner with broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security. The Department, in its response, explained that the release of records of other investigations and complaints could constitute a threat to other inmates, correctional staff, the institution, or any other person. Accordingly, we conclude that the Department, in the exercise of its discretion under KRS 17.025(1), properly denied access to the records at issue in this appeal. Because the foregoing is dispositive of this appeal, we need not address the applicability of the other exceptions to disclosure cited by the Department.
A party aggrieved by this decision may 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.