Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from Eastern Kentucky Correctional Complex's denial of John Reneer's August 13, 1996, request to inspect records which confirm that certain named inmates at EKCC, who are alleged to have engaged in "high-risk behavior," as defined in KRS 197.055(2), and with whom Mr. Reneer shares, or has shared, a cell, have submitted to HIV testing as required by that statute. On behalf of EKCC, records custodian Sarah Tobias denied Mr. Reneer's request, advising him that release of such records would constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a). Mr. Reneer challenges this position.
In his letter of appeal, Mr. Reneer argues that inmates who engage in "high-risk behavior," and undergo HIV testing pursuant to KRS 197.055, have a minimal privacy interest in nondisclosure of records confirming testing. 1 He notes that various records circulated within the facility, including adjustment committee hearing schedules containing an inmate's name and the offense with which he is charged, and adjustment committee hearing results, containing an inmate's name, offense, and the resulting disciplinary action taken, disclose the identities of inmates charged with "inappropriate sexual behavior. " It is Mr. Reneer's position that:
Engaging in a high-risk behavior intentionally, and especially while knowing that if caught the entire EKCC staff and inmate population will learn of the offense charged and the outcome of the hearing, is the equivalent of waiving any privacy interest which the charged inmate may have had; [sic] including any such interest in remaining anonymous, keeping the specific charge secret, keeping the committee's findings secret, keeping the punishment secret, or keeping secret the mandatory requirement of testing pursuant to KRS 197.055.
Any expectation of privacy that these inmates might otherwise have, Mr. Reneer argues, is outweighed by his "right to enforce and be made aware of the fact that KRS 197.055 has been complied with once a high-risk inmate has been moved into a room with [him] against [his] will."
EKCC, through Corrections Department staff attorney Tamela Biggs, responds that the adjustment committee hearing schedule "is posted for the purpose of notifying those inmates who need to be present for court call," but that the adjustment committee hearing results are not posted, or widely circulated. Only certain identified officials and employees receive a copy of the results. Moreover, the fact that an inmate is charged with engaging in inappropriate sexual behavior does not necessarily mean that he has engaged in homosexual activity. This offense also encompasses making sexually provocative comments to correctional staff or in a telephone call, and engaging in voyeurism. In closing, Ms. Biggs observes:
The mere fact that an inmate has been tested pursuant to KRS 197.055 does not mean that they have engaged in homosexual activity. Inmates who acquire institutional tattoos, as well as intravenous drug users, are tested as well. We do see a privacy interest in precluding the disclosure of performing the test. The procedure itself is a confidential medical test, the results of which are released to the inmate's medical file and designated Corrections personnel as required by statute. For some of our inmates, the fact a test has been administered automatically means that the individual is a homosexual and therefore subject to ridicule and/or physical assault. Our institutions have been infiltrated by gangs and "real men" who view gay bashing as a form of recreation. Inmates who are suspected of drug abuse may be viewed as "weak" and may be coerced into becoming a source of illegal substances or they may willingly supply such substances. . . . Finally, why should an inmate be privy to information that is not disclosed to some of the institutional staff?
Thus, EKCC maintains that the inmates' privacy interest in nondisclosure of records confirming HIV testing is weighty indeed, and superior to Mr. Reneer's concern for his personal safety.
We are asked to determine if Eastern Kentucky Correctional Complex properly relied on KRS 61.878 (1)(a) in denying Mr. Reneer's request. For the reasons set forth below, we find that although it has not met its statutory burden of proof relative to invocation of the cited exemption, EKCC makes the requisite showing under KRS 197.025 to preclude disclosure of the disputed records to this requester.
"The unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment." Beckham v Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994) citing KRS 61.871. In spite of this "manifest intention to enact a disclosure statute," the General Assembly has mandated that certain records should be excluded from public access. Id. Among these are records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a). From this exemption:
We must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality . . . suggesting an absence of legislative intent to create unrestricted access to records.
Beckham at 578. In denying access to public records under the exemption, the burden of proof rests with the public agency. KRS 61.880(2)(c).
Eastern Kentucky Correctional Complex failed to meet its statutory burden of proof in invoking the privacy exemption to authorize nondisclosure. In its initial denial of Mr. Reneer's request, EKCC did little more than recite the language of the exemption. In her follow-up letter, Ms. Biggs refuted Mr. Reneer's allegations that the identity of inmates who have engaged in high-risk behavior, and thus triggered the requirements of KRS 197.055, is widely known within the institution, but did not explain why the inmates' privacy interest is superior to the public's interest in disclosure. 2 She did, however, make a sufficient showing under KRS 197.025(1) 3 that disclosure of the disputed records to Mr. Reneer would constitute a threat to the security of other inmates and the institution.
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.
Ms. Biggs notes that "for some . . . inmates, the fact [that] a test has been administered automatically means that the individual is a homosexual and therefore subject to ridicule and/or physical assault. " Moreover, "inmates who are suspected of drug abuse [and thus required to submit to testing] may be viewed as 'weak' and may be coerced into becoming a source of illegal substances or they may willingly supply such substances." Given Mr. Reneer's criminal history, and his conduct while in prison, she concludes that disclosure of records confirming HIV testing to him "has the potential for harm to both inmates and staff alike." We defer to the Department's judgment in this matter, and therefore find that EKCC may properly withhold the records Mr. Reneer seeks.
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 KRS61.880(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.
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