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 Kenton County Detention Center violated the Open Records Act in denying Helen Henson's February 26, 2002 request for "a complete copy of the Kenton County Jail Roster. " For the reasons that follow, we affirm the Center's denial of Ms. Henson's request for the jail roster, but encourage the Center, and other such facilities, to consider a less restrictive policy which comports with prior opinions of this office. See OAG 81-395, p. 2.
In a letter dated March 14, 2002, Brandon N. Voelker responded to Ms. Henson's request. Noting that an identical request submitted by Christopher Henson was previously denied "based on security concerns at the Kenton County Jail, " Mr. Voelker advised:
Your request is also being denied based on security reasons. KRS 197.025(1) 1 prohibits the release of records to any person if the release of said records constitutes a threat to the security of the inmates. Prisoner's cell locations etc. . . are contained on the documents you request. Prisoners could obtain this information through persons not confined in the jail and use said records to find out the location of other inmates, possibly seeking to harm said inmate.
Following receipt of this office's notification of Ms. Henson's open records appeal, Mr. Voelker elaborated on the Center's position. Noting that the Christopher Henson whose request was earlier denied, and who resided at the same address as Ms. Henson, is currently incarcerated in the Kenton County Detention Center, he observed:
After I informed Mr. Henson that I would not be honoring his request, I received an identical request from Mrs. Henson, which I denied for the same reasons. I have enclosed a copy of Mr. Henson's request and response. I originally intended to honor the request, but the jailer informed me that it posed a risk to his inmate population. I did not even know Chris Henson was an inmate until I asked the Jailer for a copy of the roster.
Both the Jailer and Chief Deputy advised that it was a security risk to release the list of inmates and their cell numbers etc. . . An inmate or even a person on the outside could obtain this information and use it to locate a prisoner within the jail. Furthermore, the list could be used to either start a rebellion or seek retribution against an inmate. Therefore, both requests were denied.
Relying on KRS 197.025(1), and 00-ORD-182 and 00-ORD-153, affirming its application to county jails, Mr. Voelker explained:
The jail roster contains prisoner's names and cell locations. The jailer has informed me that both he and his staff believe the dissemination of this information constitutes a security threat. In Kenton County, inmates belong to gangs, etc. . . Person both inside and outside the jail could utilize this list to commit further crimes, harass witnesses, or do other criminal acts. Therefore, pursuant to KRS 197.025 and the aforementioned Attorney General's opinions, both requests were denied.
In closing, Mr. Voelker expressed the belief that "under no circumstances can this information be released, absent a mandate from the Supreme Court.
On at least three occasions, this office has recognized that KRS 197.025 (2) authorizes a jail or correctional facility to withhold from an inmate a copy of the inmate roster. See 99-ORD-161, 00-ORD-153; 00-ORD-182. KRS 197.025(2) provides:
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 construing this provision, the Attorney General has observed:
KRS 197.025 underwent significant revision in the 1998 legislative session. [The provision] now limits an inmate's access to records which do not pertain to him or her. While there may be occasions when we are presented with a close [question], [we will defer to the correctional facility's judgment when the records obviously do not pertain to the inmate] . To hold otherwise would open the door to . . . tenuous claims thereby subverting the intent of the recent enactment.
98-ORD-150, p. 3. In each of the cited open records decisions, the Attorney General concluded that records reflecting the identities and locations of an entire inmate population in a given facility on a given date, do not pertain to an individual inmate requester, and therefore qualify for exclusion under KRS 197.025(2) from that inmate requester.
Nevertheless, in both 99-ORD-161 and 00-ORD-182, we noted that we "continue[] to ascribe to the view that records revealing the identities of inmates housed in correctional facilities cannot be withheld from ordinary persons exercising their rights under the Open Records Act pursuant to KRS 61.878(1)(a), or any other exception to public inspection. " 99-ORD-161, p. 2 and 00-ORD-182, p. 4. Although it was not expressly stated in those decisions, this position was premised on a line of early open records opinions recognizing:
It is especially important that jail records be open to public inspection. It is contrary to the principles of personal liberty recognized in this nation for persons to be secretly held in jail.
OAG 81-395, p. 1, 2; OAG 83-212, p. 4. Clearly, KRS 197.025(2) bars inmate access to a jail roster reflecting the names and locations of the entire jail population because the roster does not pertain to the individual inmate. Whether KRS 197.025(1) authorizes nondisclosure of the roster to inmates, and the public generally, is a closer question.
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 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.
In 00-ORD-182, this office affirmed the Grayson County Jailer's denial of a joint request submitted by an inmate and his wife for the "names of all inmates, last known address, and telephone numbers housed in 'Dorm 7' on July 19, 2000" and "the names, titles of all employees who worked from July 18 - July 19, 2000, their addresses, and telephone numbers." At page 4 of that decision, we held:
The language of this provision is clear on its face. The jailer, acting as the designee of the commissioner of the Department of Corrections, 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. Disclosure of the names, addresses, and phone numbers of jail employees, as well as inmates housed in the facility, would clearly constitute a threat to their security as well as to the security of their families.
Further, at note 3 of that decision we commented that our conclusion was not altered by the fact that the inmate included his wife's name and signature on the request, reasoning:
Where, as here, sufficient objective indicia exist to establish an identity of purpose between an inmate and a non-inmate, this office will not require disclosure of records to the latter, thereby undermining the purpose for which KRS 197.025(2) was enacted.
00-ORD-182, p. 5, note 3. Although Ms. Henson did not request identical records in the appeal before us, 2 we find that the Kenton County Detention Center met its statutory burden of proof relative to denial of the jail roster. The roster identifies inmates by both name and cell location, and disclosure constitutes a threat to the security of inmates, correctional staff, and the institution because access to this information facilitates retaliatory acts and other breaches of institutional order. Moreover, as in 00-ORD-182, objective indicia exist to establish an identity of purpose between Chris Henson, an inmate in the Detention Center, and Helen Henson, and it defies logic to require that the record to which he was denied access on the basis of KRS 197.025(2) be released to her.
Nevertheless, we are mindful that this holding tends to undermine the position announced in OAG 81-395 and OAG 83-212, and to contravene the principles of personal liberty which recognize that persons should not be secretly held in jail. As we observed at page 7 of 00-ORD-225:
[T]he discretion vested in the commissioner of the department [of Corrections or his designee] 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, on its face, suggest a need for complete nondisclosure.
We would suggest that disclosure of the roster, after the cell locations of inmates are redacted, may not pose a threat to inmate or institutional security. In support, we note that the web site posted by the Kentucky Department of Corrections permits any user to search for an inmate by identification number, name, institution, age, race, or gender, as well as conviction information, and to review responsive information disclosing the inmate's name, current institution, identification number, and offenses. We encourage the Kenton County Detention Center to reevaluate its absolute prohibition on disclosure of the jail roster, and to adopt a less restrictive policy of releasing a redacted copy containing only inmate names in deference to the principles of personal liberty recognized in OAGs 81-395 and 83-212.
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.
Distributed to:
Helen Henson1939 Augustine AvenueCovington, KY 41014
Brandon VoelkerAssistant Kenton County Attorney303 Court Street, Rm. 307Covington, KY 41011
Garry EdmondsonKenton County Attorney303 Court Street, Rm. 307Covington, KY 41011
Terry Carl, Jailer Kenton Co. BuildingCovington, KY 41011
Footnotes
Footnotes
1 KRS 197.025(1) and (2) are incorporated into the Open Records Act by operation of KRS 61.878(1)(l) authorizing 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.
2 Ms. Henson's request implicates only the inmate's identity and cell location, not his last known home address and telephone number, and does not implicate, in any fashion, the names, home addresses, and telephone numbers of jail employees.