Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert 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 Kentucky State Penitentiary's (KSP) response to Mr. Sammie Warner's open records request, dated December 14, 1998, for a copy of "all records contained in my Inmate Record file that have to do with any and all psychological/ psychiatric, evaluations/observations and treatments to include any records received from other agencies and institutions."
On December 18, 1998, Nancy Doom, Records Custodian, KSP, responded to Mr. Warner's request by explaining to him that, prior to releasing the records he had requested, mental health staff must review the records and determine if it would be appropriate to release them to him. She further advised that the records had been submitted to Ken Thomas for review and she would notify him of the outcome of the review. On January 28, 1999, Ms. Doom notified Mr. Warner that his request had been denied.
In his letter of appeal, Mr. Warner argues that the KSP's response was a violation of the Open Records Act, in that it neither set forth the reasons for the denial nor the authorities that authorized the denial.
After receipt of Mr. Warner's letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, supplemented Ms. Doom's response and addressed the issues raised in the appeal. In her response, Ms. Biggs stated:
I have reviewed the relevant documentation and spoken to Ms. Doom regarding the referenced appeal. I shall be discussing the necessity of adhering to the statutory requirements which were neglected in responding to Mr. Warner's request with Ms. Doom and Mr. Thomas.
If an inmate requests access to his psychological or psychiatric records, it is the practice of the Department to have Mental Health staff review the request and mental health records. If, in the judgment of the Mental Health professional, the inmate is incapable of understanding or coping with the information, or if the documents contain information, data or opinions of the psychologist or psychiatrist and disclosure of such information or documents would pose a threat to the security of the inmate, another inmate, staff, the institution or the mental health professional, the statutory exemption of KRS 197.025(1) shall be invoked. The response failed to appropriately reference this subsection as the basis for the denial.
The response was also not delivered in a timely manner. KRS 197.025(7), as amended 15 July 1998, provides:
Ms. Doom forwarded the request to Mr. Thomas, psychologist, for review and dispensation. Mr. Thomas did not respond to Ms. Doom on or until the 28<th> of December. While institutional and Mental Health staff are very busy, they must abide by the five day response window.
We are asked to determine whether the response of the KSP was consistent with the Open Records Act. For the reasons that follow, we conclude that the response of the agency, while procedurally deficient, was substantively in accord with the Act.
As noted in Ms. Biggs's response, the KSP response was procedurally deficient in that its denial failed to include a citation to the specific exception authorizing the withholding of the record, and a brief explanation of how the exception applies to the record withheld. KRS 61.880(1). It also was not timely in that it did not notify Mr. Warner of its determination of his request within five business days, as required by KRS 197.025(7). This deficiency is mitigated by the agency's subsequent response which met the requirements of KRS 61.880(1) and explained its efforts to correct the problem in the future.
As to the substantive issue, and in view of 97-ORD-134 (copy enclosed), we find the KSP properly relied upon KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Mr. Warner's request for his psychiatric and psychological evaluations.
KRS 61.878(1)(l) provides:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
KRS 197.025(1) provides that no person, including any inmate under the jurisdiction of the Department of Corrections, 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.
In its supplement response, the Department denied Mr. Warner access to the requested records under authority of KRS 197.025(1). This office is not in a position to second guess the Department or to conclude that it abused its discretion on the basis of the facts as presented in this appeal. 94-ORD-40. Accordingly, we conclude the Department properly relied upon KRS 197.025 in denying access to the requested records.
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.