Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Western Kentucky Corrections Complex (WKCC) violated the Open Records Act in its response to the open records request of Kenneth Lewis, an inmate at the institution, for the following documents:
Copy of all test results which were taken while I was in the S.O.T.A. Program which Dr. Peterson discussed with me.
Responding on behalf of WKCC, Sue Thompson, Custodian of Records, informed Mr. Lewis that she had contacted Dr. Peterson about the requested copies and had been advised by the doctor that she could not make copies of these tests for clients.
By separate letter to Mr. Lewis, Dr. Peterson advised him, in relevant part:
I have received your letter of complaint. I also understand that you have requested a copy of your psychological test data.
Psychologists do not release raw psychological test data to clients. To discuss how you did on psychological tests in the SOTP [Sexual Offense Treatment Program] file, you will need to make an appointment to see me during my next visit to WKCC. I will be there on the morning of September 2, 2000.
In his letter of appeal, Mr. Lewis contends that he is entitled to see a copy of the test and the results so he can have a licensed psychologist who does not work in Kentucky review his test and results. He argues he is entitled to copies of these records because they pertain to him.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the letter of appeal. Elaborating on WKCC's original response, Ms. Biggs advised, in pertinent part:
. . . The test being requested by Mr. Lewis is given to all inmates as they are accepted into the assessment and orientation phase of the SOTP. To permit one inmate access to the test and thereby introduce it to the "yard" could result in distorted results that would adversely impact another inmate's entrance into, or participation in, the program. Just as a score on an employment or licensing examination is a good indicator of how the applicant will perform on the job or meets the requirements for licensure, the requested test assists the psychologist in assessing the needs of the inmate and proceeding in the treatment program accordingly.
Dr. Peterson also explained that the Ethical Principals of Psychologists and Code of Conduct precluded the release of the test and the raw data to the test subject. Ethical Standards 2.02 mandates that a Psychologist shall refrain from the misuse of assessment techniques, interventions, results and interpretations and take reasonable steps to prevent others from misusing the information these techniques provide. This includes refraining from releasing raw test results or raw data to persons, other than patients or clients, as appropriate who are not qualified to use such information. Under this Standard, Dr. Peterson is not only required to refrain from misuse of the assessment techniques, etc., but is also required to "take reasonable steps to prevent others from misusing" the information provided. Pursuant to this end, she must not release raw test results or raw data to persons, other than patients or clients, who are not qualified to use such information. While the Standard infers that the psychologist may provide results or data to a patient or client, such inference is qualified by the phrase "as appropriate." Dr. Peterson withheld the test and the raw results from Mr. Lewis to prevent the dissemination of the test to other inmates prior to their taking the examination and because Mr. Lewis is not qualified, either through appropriate education or under the Standards, to utilize or interpret the information. Dr. Peterson told Mr. Lewis that upon receipt of the name and address of a qualified psychologist, she would forward the test and the raw test data to him or her for review. Mr. Lewis did not provide the requested information.
An argument could also be made that the test and the results could be withheld pursuant to KRS 61.878(1)(l) and 197.025(1). If the inmate population were to gain access to the test prior to taking it, the results could be skewed or manipulated so that they would not be truly indicative of the inmate's strengths, weaknesses or needs. This could result in an inmate not receiving the appropriate type or level of treatment. As the incidence of re-offending are more likely to occur in the absence of treatment or within a year or so of ending treatment, society has a rather vested interest in the effective treatment of such offenders in the hope of protecting its citizens and preventing a recurrence of the behavior.
We are asked to determine whether the response of the WKCC was in violation of the Open Records Act. For the reasons that follow, we conclude that, although the original response was procedurally deficient, the agency's subsequent response was substantively correct and in accord with the Act.
KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
This provision operates in tandem with KRS 197.025(1) to exclude from the application of the Open Records Act records the disclosure of which would represent a threat to institutional security. KRS 197.025(1) thus 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 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.
This provision vests the commissioner or his designee with far-reaching discretion to deny a records request under the circumstances described. In 99-ORD-47, we found that the Kentucky State Penitentiary properly relied upon KRS 61.878(1)(l) and KRS 197.025(1) in denying an inmate access to his psychiatric and psychological evaluations.
Addressing Mr. Lewis' request for a copy of his test and the raw psychological test data, the Department of Corrections explained that access to these records was denied to prevent the dissemination of the test and data to other inmates prior to their taking the examination and because Mr. Lewis was not qualified, either through appropriate education or under the Standards, to utilize or interpret the information. As we noted at page 3 of 97-ORD-25, "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." In our view, the explanation offered by the agency supports the need to withhold the records pursuant to KRS 61.878(1)(l) and KRS 197.025(1). Accordingly, we conclude the WKCC properly denied Mr. Lewis access to a copy of his psychological test and the raw psychological test data, under the cited statutes.
In his letter of appeal, Mr. Lewis argues that he is entitled to the requested records since they pertained to him. However, the release of records under KRS 61.884 is subject to the provisions of KRS 61.878. KRS 61.884 provides:
Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.
As noted above, we concluded the institution properly relied on KRS 61.878(1)(l) and KRS 197.025(1) in denying Mr. Lewis' request. Accordingly, since the requested records are exempt from disclosure under these provisions, they are not required to be disclosed under KRS 61.884. 98-ORD-122.
Because we find the foregoing is dispositive of this appeal, we need not address other grounds set forth by the WKCC as a basis for denial of the requested records.
Finally, the Department of Corrections acknowledged in its response to the letter of appeal that the original response of WKCC was procedurally deficient in failing to identify the correct statute authorizing nondisclosure of the requested records. KRS 61.880(1) provides that "an agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record." In this case, the relevant exception was KRS 61.878(1)(l) that authorizes nondisclosure of records made confidential by enactment of the General Assembly. A properly worded denial must include citation to both KRS 61.878(1)(l) and KRS 197.025(1), and a brief explanation of how these statutes apply.
The agency has acknowledged these procedural deficiencies and has indicated that steps have been taken to ensure procedural compliance with the Open Records Act in the future.
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.