00-ORD-225

00-ORD-225

December 6, 2000

In re: James Blair/Kentucky State Penitentiary

Open Records Decision

        The question presented in this appeal is whether Kentucky State Penitentiary violated the Open Records Act in its disposition of James Blair’s October 8, and October 17, 2000, requests to inspect the 12 Left Walk segregation unit log book for the one-half hour period between 9:00 a.m. and 9:30 a.m. on September 1, 2000. For the reasons that follow, we affirm KSP’s denial of Mr. Blair’s requests.

        At the time of his first request, Mr. Blair was housed in the segregation unit at KSP, prompting KSP Segregation Unit Administration Richard Pershing to deny that request on the grounds that the circumstances of Mr. Blair’s confinement precluded on-site inspection of the log book. Shortly thereafter, Mr. Blair resubmitted his request suggesting that as an alternative to on-site inspection, he be provided with an affidavit documenting any references to him in the log book on the date and time identified in his request. In the intervening period, it appears that Mr. Blair was released from the segregation unit. Since the circumstances precluding on-site inspection no longer existed, on October 20, Mr. Pershing denied Mr. Blair’s request on the basis of KRS 61.878(1)(l), incorporating KRS 197.025(1) into the Open Records Act. He explained that inspection of the record identified in Mr. Blair’s request would constitute a threat to the security of other inmates and staff insofar as “the log book includes notations regarding the movement of inmates and staff . . . [and] . . . release of such information may provide inmates access to staffing patterns and movements, and the movements and location of particular inmates for regularly scheduled appointments.”  Dissatisfied with Mr. Pershing’s response, Mr. Blair initiated this open records appeal.

        In a supplemental response directed to this office following commencement of Mr. Blair’s appeal, Department of Corrections Staff Attorney Tamela Biggs elaborated on KSP’s position. She relied on the language found at 95-ORD-105, and echoed in 98-ORD-157 and 98-ORD-77, recognizing that “[a]n inmate in a correctional facility . . . must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records.”  95-ORD-105, p. 5. Ms. Biggs disputed Mr. Blair’s contention that he requested an affidavit as an alternative to conducting an on-site inspection, but responded that he was not entitled to same inasmuch as KSP was not required by the provisions of the Open Records Act to create a record that does not exist in order to satisfy a records request. In support, she cited OAG 82-234, OAG 91-20, and OAG 79-547. Ms. Biggs also characterized Mr. Blair’s request as a request for information that need not be honored under the Act. Citing OAG 89-61.

        With reference to KSP’s denial of Mr. Blair’s October 17 request for the same record, Ms. Biggs commented:

        The segregation unit log book could be withheld pursuant to either KRS 61.878(1)(l) and 197.025(1) or 197.025(2). In discussing the appeal with Mr. Pershing, he explained why release of the log book is a security concern. The book includes notations regarding the movement of both staff and inmates. It contains information regarding unscheduled inspections and cell entries. The book could provide inmates with information regarding staffing patterns and movement. It also includes notations regarding regularly scheduled appointments for inmates. If an inmate wanted to plan an assault on a specific staff member or other inmate, access to movement and regularly scheduled postings or appointments could provide the inmate with advance information as to the precise time and place such could occur. Access to the book could also be denied pursuant to KRS 197.025(2). If the name of the inmate making the request does not appear in the book, he is not entitled to it as it does not pertain to him.

On this basis, Ms. Biggs reaffirmed KSP’s denial of Mr. Blair’s request. We find that KSP properly refused to honor his requests for the reasons stated, and that it was not obligated to prepare an affidavit, or any other record, as an alternative to allowing him to inspect the log book in its original form.

        As KSP and the Department correctly observe, the Attorney General has long recognized that although an inmate enjoys the same rights as any other requester under the Open Record Act, he “is uniquely situated with respect to the exercise of [these] rights.”  95-ORD-105, p. 5. Thus, at page 5 of 95-ORD-105, we stated that “all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof,” but “an inmate’s movements within [a correctional] facility are presumably restricted, and the manner in which he conducts his financial business dictated by the facility.”  95-ORD-105, citing 94-ORD-90, p. 2. We held that pursuant to KRS 61.872(3)(b) and KRS 61.874(1), a correctional facility may properly require prepayment for copies of public records that are requested by inmates under the Open Records Act since the Act “contains no waiver of the prepayment requirements for inmates.”  Id. at 6.

        Moreover, we held that “depending on the circumstances of his confinement, an inmate may be foreclosed from asserting the right to inspect public records ….”  Id.  The Attorney General reasoned:

Although the statute contemplates records access by one of two means, on-site inspection during the regular office hours of the agency or receipt of the records from the agency through the mail, access via on-site inspection may pose a problem in the restrictive environment of a correctional facility. KRS 61.872(3). Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined. And, if he is prohibited from freely moving about in the facility, and therefore cannot conduct an on-site inspection in the records office, the facility is under no obligation to bring the original records to his cell for inspection.

Id.

        The Kentucky Court of Appeals recently weighed in on this issue. In Blair v. Hendricks, No. 98-CA-2211 (Ky. App. 6/23/000), the court held that an inmate was improperly denied access to records of a disciplinary committee at the correctional facility where he was housed. Recognizing that “the Kentucky Open Records Act makes no exception for records held by incarceration facilities or requests for public records made by prison inmates,” and that an inmate enjoys the same rights under the Act as any other records applicant, the court concluded that “[p]ublic agencies are required to supply copies of records to prison inmates upon request.”  Blair at 5, 6. Clearly, the court did not intend to invest inmates with greater rights than other records applicants by eliminating the requirement of prepayment for copies, or requiring agency employees to physically transport requested records to the inmate’s current housing unit so that he might exercise his right to inspect. Because an inmate enjoys equal, but not greater, rights under the Act, he must comply with the requirements found at KRS 61.872(3)(b) and KRS 61.874(1) before accessing records by receipt of copies, and KRS 61.872(1) and (3)(a) before accessing records by on-site inspection. Just as the Open Records Act does not require a public agency to physically transport records to the home or office of a non-inmate, on demand, to facilitate inspection, so the Act does not require a public agency, including a correctional facility, to physically transport records to an inmate’s housing unit, on demand, to facilitate inspection. Any other interpretation of Act is not supported by the language of the statutes and could not have been the intent of the General Assembly in enacting the Open Records Act, or the Court of Appeals in construing it. An inmate who is disciplined for an infraction by being placed in segregation forfeits not only his ability to move about within the correctional facility, but the ability to exercise his right of inspection under the Act.

        As noted above, at the time of his original request, Mr. Blair had been placed in segregation. Nevertheless, he specifically asked to inspect, rather than receive copies of, the record identified in his request. Consequently, KSP promptly advised Mr. Blair that his “current segregation housing assignment prohibit[ed him] from moving freely about the facility,” and that he therefore could “not conduct an on-site inspection in any institutional office.”  This was a proper response under the Act. Had Mr. Blair requested copies, and had KSP determined the records to be nonexempt, and had he transferred funds from his inmate account to prepay for those copies, then KSP would have been “required to supply copies of records to” him.¹  Blair at 5.

        Assuming for the sake of argument that Mr. Blair did propose, as an alternative to on-site inspection, that KSP furnish him with an affidavit documenting any references to him in the log book on the date and at the time identified in his request, we affirm KSP’s refusal to create a record to satisfy this request. As Ms. Biggs correctly notes, the Open Records Act governs access to existing public records, and it is well-settled that an agency is not required to create a record that does not already exist in order to satisfy a request. 00-ORD-133, 95-ORD-82, OAGs 91-220, 91-101, 90-69, 90-26, 86-38. On this issue, the Attorney General has opined:

There is no reference in [KRS 61.8715, or anywhere else in the Open Records Act] to records creation. We decline the invitation to invade the prerogative of public agencies in determining, “in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,” what records they must create. KRS 171.640. We therefore affirm those principles articulated in OAG 78-231 and subsequent opinions relative to records creation, and conclude that, KRS 61.8715 notwithstanding, the Attorney General is not empowered to order an agency to create records, or to declare its failure to do so a subversion of the intent of the Open Records Act.

95-ORD-48, p. 4. We find no error in KSP’s refusal to honor Mr. Blair’s proposal that it create a record containing the information he seeks.

        Turning to KSP’s October 20 response to Mr. Blair’s renewed request to inspect the 12 Left Walk segregation unit log book for the one-half hour between 9:00 a.m. and 9:30 a.m. on September 1, 2000, we affirm the facility’s denial. KSP maintains that the requested record “could be withheld pursuant to KRS 61.878(1)(l)² and either 197.025(1) or 197.025(2). These statutes provide as follows:

(1)        KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision 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.

(2)        KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which pertains to that individual.

In enacting KRS 197.025(1), “the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt where disclosure of those records is deemed to constitute a threat to security.”  96-ORD-209, p. 3. The language of KRS 197.025(1) is clear on its face. The commissioner of the Department of Corrections, or his designee, may designate certain agency records as confidential “if he or she finds that disclosure would imperil personal and public security and administrative order.”  95-ORD-121, p. 7. The Attorney General has recognized that KRS 197.025(1) “vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records.”  96-ORD-179, p. 3. KRS 197.025(2) further restricts an inmate’s right of access to records in the custody of agencies under the jurisdiction of the Department of Corrections to records that pertain to that inmate. 99-ORD-161, p. 2, 3; 00-ORD-182.

        In general, the Attorney General has refused to substitute his judgment for that of the commissioner or his designee, and we will not do so here. Mr. Pershing and Ms. Biggs express concern that disclosure of the entries in the 12 Left Walk segregation unit log book for the one-half hour between 9:00 a.m. and 9:30 a.m. on September 1, 2000, will compromise security by revealing staff and inmate movement patterns, information regarding unscheduled inspection and cell entries, and regularly scheduled inmate appointments. Although neither furnishes any details on the number of entries that appear in the log book in the one-half hour period under scrutiny, and how a pattern could be discerned from this narrow time frame, we defer to their judgment.

        Nevertheless, we remind KSP and the Department of Corrections that the discretion vested in them to deny inmates access to records for security reasons is not unfettered. An analysis of the propriety of the agencies’ exercise of their discretion is case specific, and the case before us does not, at least on its face, suggest a need for complete nondisclosure. If Mr. Blair’s name appears on the log book one or more times, all other entries can be redacted to avoid disclosure of staff and inmate movement patterns, unscheduled inspection and cell entries, and regular inmate appointments. If his name does not appear, as Ms. Biggs intimates in her response, he should be so advised, there being no record responsive to his request, and KRS 197.025(2) authorizing KSP and the Department to withhold the log book because it does not pertain to him.³  Because we do not find that KSP and the Department clearly abused their discretion in denying Mr. Blair access to the log book entries for the one-half hour period identified in his request, we conclude that their actions did not violate the Open Records Act. Nevertheless, we encourage them to consider these alternatives in the interest of avoiding an overly restrictive interpretation of KRS 197.025(1) and (2).

        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 proceedings.

Albert B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#672

Distributed to:

James Blair, Jr., #108833

Kentucky State Penitentiary

P.O. Box 128

Eddyville, KY 42038-0128

Richard Pershing

Deputy Warden

Kentucky State Penitentiary

P.O. Box 128

Eddyville, KY 42038-5000

Tamela Biggs

Department of Corrections

Office of General Counsel

2439 Old Lawrenceburg Road

Frankfort, KY 40602-2400