Request By:
Craig Jones, 138737 D-3
P.O. Box 479
Burgin, KY 40310Brian A. Logan
Department of Corrections
Office of General Counsel
2439 Old Lawrenceburg Road
P.O. Box 2400
Frankfort, KY 40602-2400Ron Howard
Bell County Forestry Camp
Route 2, Box 75
Pineville, KY 40977Steve Durham
Department of Corrections
Office of General Counsel
2439 Old Lawrenceburg Road
Frankfort, KY 40602-2400
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Bell County Forestry Camp violated the Open Records Act in the disposition of Craig Jones' September 28, 2001 request for records generated at, and relating to, an adjustment committee hearing conducted on August 31, 2001. For the reasons that follow, we conclude that BCFC's response was procedurally deficient but substantively correct.
On September 28, Mr. Jones submitted a written request for copies of the following records:
Adjustment Committee Hearing Tape, 8/31/01 begin 000 end 079 Weapon, Dangerous Contraband, Chain of Custody
Confidential Informant Report
Confidential Informant Letter
Confidential Informant Reliability Report
Incident Reports involving weapon
Write Up Appeals done by Legal Aide Paul York[.]
Having received no response to his request, Mr. Craig initiated this open records appeal on October 17, 2001.
In a letter directed to this office following commencement of Mr. Jones' appeal, Department of Corrections Staff Attorney Brian A. Logan stated that BCFC has furnished Mr. Jones with copies of all of the records identified in his request with the exception of the confidential informant report, confidential informant letter, and confidential informant reliability report. With reference to the records withheld, Mr. Logan explained:
The request for these three items has been denied pursuant to KRS 197.025(1). The Department of Corrections feels that the release of these three items would constitute a threat to the security of another inmate and/or correctional staff.
We affirm the Department's partial denial of Mr. Jones request, but find that its initial response was procedurally deficient.
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for public records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. If all or any portion of the request is denied, the agency must cite the specific exception authorizing nondisclosure, and briefly explain how the exception applies to the record withheld. The BCFC did not respond in writing to Mr. Jones' request; nor did it cite a specific exception authorizing nondisclosure. To this extent, BCFC's inaction constituted a procedural violation of the Open Records Act. We remind BCFC that the procedural requirements of the 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. We urge BCFC to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issues in this appeal, we note that KRS 197.025(1), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 provides:
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 [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 enacting this provision, "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3. 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.
This broadly worded provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2. Since the statute was enacted in 1990, this office has affirmed correctional facilities' denials of inmate requests, as well as requests submitted by others, for conflict sheets (OAG 91-136); psychological evaluations (OAG 92-25, 92-ORD-1314); inmate canteen records (94-ORD-40, 96-ORD-209, 97-ORD-25); personnel records of correctional officers or employees (96-ORD-179, 96-ORD-182, 96-ORD-204); reports of deficiencies at correctional facilities (96-ORD-222); records confirming that inmates have submitted to HIV testing (96-ORD-243); inmate honor dorm waiting lists (97-ORD-33); and records containing procedures employed in an execution (97-ORD-51).
Mr. Jones requested copies of, inter alia , a confidential informant report, confidential informant letter, and confidential informant reliability report apparently relating to the incident that gave rise to the adjustment committee hearing conducted on August 31, 2001. Clearly, the disclosure of records identifying a confidential informant would constitute a threat to the security of an inmate, correctional staff, the institution, or another person. Nor are we inclined to substitute our judgment for that of the facility or the Department of Corrections, but defer to the agencies in this matter. Accordingly, we affirm BCFC's partial denial of Mr. Jones' request.
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.
Footnotes
Footnotes
1 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.