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 Louisville Metro Department of Corrections violated the Open Records Act in the disposition of Larry Tyus' request for copies of disciplinary records relating to him. For the reasons that follow, we find that the Department's response to Mr. Tyus' request was only partially consistent with the requirements of the Open Records Act, and constituted, to the extent of the deficiencies described below, a violation of the Act.
In an undated letter, Mr. Tyus requested copies of "all [of his] disciplinary reports" including:
. reports and actions taken on August 18 and 19, 2002;
. incident reports filed on November 29, 2002 by Officers Ezelle, Delong, Allen, and Sousa;
. reports and disciplinary action taken against [Mr. Tyus] on November 30, 2002;
. statements made to Lieutenant Dietz pertaining to that disciplinary action;
. request for an appeal from the action taken against him and the letter to Major Daniel asking for an appeal;
. decision denying his right to appeal and why he was not charged with a serious violation of policy or arraigned in court on a weapons charge;
. January 20, 2003 disciplinary report and action taken against him, including information about his placement in solitary confinement;
. January 20, 2003 incident report "of another inmate" and what action was taken against him;
. all inmate grievances he filed against corrections officers from April 2002 to March 2003.
On September 4, 2003, Second Shift Records Supervisor Arnetta Al-Amin responded to Mr. Tyus' request, advising him that his "request for copies of the incident report filed on November 29, 2002 and January 20, 2003 [was] granted and [copies of these records would] be forwarded to [him]." Ms. Al-Amin indicated that it would "take approximately five (5) days to gather the records" and that Mr. Tyus would then be notified about copying and postage charges. On September 8, 2003, Classification Coordinator Monica Edwards supplemented Ms. Al-Amin's response, informing Mr. Tyus that his request for disciplinary reports dated August 18, 2002, August 19, 2002, November 29, 2002, and November 30, 2002 (assuming that these reports exist) including any appeal, [; and] grievances . . . filed against Corrections Officers [from] April 2002 to March 2003 . . . is granted." She again advised Mr. Tyus that he would be assessed copying and postage charges and notified about these charges "when the records are gathered."
One day later, and almost certainly in advance of receipt of Ms. Edwards' supplemental response, Mr. Tyus initiated this appeal, questioning the Department's refusal to afford him access to his "complete disciplinary records and other information . . . ." Following commencement of that appeal, the Department again supplemented its response in a September 17, 2003 letter to Mr. Tyus from Assistant Jefferson County Attorney Suzanne D. Cordery. Ms. Cordery denied Mr. Tyus' request for the November 29, 2002 and January 20, 2003 reports, explaining that these reports "could not be located" and "do not exist." Continuing, she observed:
[Y]our request for the incident report dated November 30, 2002 is granted in part and denied in part. You are denied inspection of information contained in that report that reflects the name of the inmate and the information provided by that inmate to Metro Corrections officers. That information has been redacted from the incident report. The report states that a subsequent search of the dorm resulted in a makeshift weapon being found under your mattress. The redacted information is exempt from public inspection pursuant to the following provisions of KRS 61.878: (1)(a), information of a personal nature where the public disclosure would constitute a clearly unwarranted invasion of personal privacy; (h), records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure would harm the agency by revealing the identity of informants not otherwise known; (i) preliminary drafts, notes, correspondence with private individuals, other than correspondence intended to give notice of a final action of a public agency; (j) preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended; and (l) public records or information that is prohibited or restricted from disclosure by an act of the General Assembly; and pursuant to KRS 197.025(1), which prohibits from disclosure those records deemed by the Department to constitute a threat to the security of the inmate, any inmate, correctional staff, or any other person. . . . See Attorney General Opinions OAG 90-117 and 97-ORD-132. Security must be maintained in a closed jail environment. It is important for inmates to be able to freely provide staff with information that enables the detection of weapons that can be used to assault inmates and staff. In this case, the report indicates that jail officers located dangerous contraband under a mattress identified as your mattress, and possession of dangerous contraband is a Class D felony under Kentucky law. KRS 520.010(1) and (3); KRS 520.050. The disclosure of the identity of the inmate would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to information. Further, this information is information that is preliminary in nature, because the inmate has no authority to take final action. In addition, the Attorney General's Office has stated that oral allegations are exempt from public inspection. See OAG 90-117, OAG 91-33. Finally, the release of the identity of the inmate as well as what was stated would constitute a threat to the security of the institution. Inmates need to be able to provide information without fear of retribution.
In a separate letter directed to this office, Ms. Cordery stated that "the disciplinary reports and grievances were mailed on approximately September 12, 2003." It is unclear to which reports and grievances she refers and whether they were disclosed in their entirety or in a redacted form.
We find that although the Louisville Metro Department of Corrections issued a timely 1 written response in which it disposed of portions of Mr. Tyus' request, the Department's failure to respond to the remaining portions of his request constituted a violation of KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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 withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Each of the responses issued by the Department to Mr. Tyus were incomplete insofar as they failed to address his request for statements 2 made to Lieutenant Dietz regarding the November 30, 2002 disciplinary action, the decision denying his appeal and indicating why he was not charged with a policy or weapons violation, 3 and the January 20, 2003 incident report "of another inmate" and the disciplinary action taken against that inmate.
Our review of the record on appeal confirms disclosure of the August 18 and 19, 2002 incident reports and disciplinary actions, a redacted version of the November 30, 2002 incident report, his letter of appeal to Major Daniel relating to that incident and insuing disciplinary action, and his inmate grievances. Assuming that all of these documents were mailed to Mr. Tyus on or about September 12, we find no error in the Department's disposition of these portions of his request, including the redaction of certain information from the November 30 incident report on the basis of KRS 197.025(1). 4 That provision states that "no person, including any inmate confined in a jail or any facility . . . shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee 5 to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." We believe that the Department's position regarding the inmate's fear of retribution while in the facility or upon release is well-taken and that its decision to withhold the redacted information finds clear support in the law. 01-ORD-224 (enclosed). Our position is not altered by the fact that Mr. Tyus is no longer incarcerated inasmuch as KRS 197.025(1) expressly provides that "no person" shall have access to such records and does not restrict only inmate access to such records. Because we affirm the Department's partial denial of Mr. Tyus' request on this basis, we do not analyze the other arguments it advances in support of its partial denial of that request.
With regard to those portions of Mr. Tyus' request for which no response was given, we find that it is incumbent on the Department to ascertain whether those records exist, to promptly advise Mr. Tyus of its findings, and to release to Mr. Tyus all nonexempt responsive records. If no additional responsive records exist, the Department is obligated to affirmatively so advise Mr. Tyus. On this issue, the Attorney General has observed:
[A]n agency's inability to produce records due to the nonexistence is tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9; 01-ORD-59, p. 5; 01-ORD-220, p. 6. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3, cited in 02-ORD-163, note 1. If other legal bases exist for denying him access to any additional responsive records located, the Department should articulate these bases in terms of the requirements of KRS 61.880(1). The Louisville Metro Department of Corrections should take immediate steps to rectify these deficiencies in the disposition of Mr. Tyus' 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 proceeding.
Distributed to:
Larry Tyus3719 Parker AvenueLouisville, KY 40212
Arnetta Al-AminCustodian of RecordsLouisville Metro Dept. of Corrections400 South 6th StreetLouisville, KY 40202
Suzanne P. CorderyAssistant Jefferson Co. Attorney400 South 6th StreetLouisville, KY 40202
Footnotes
Footnotes
1 Because Mr. Tyus' request was undated, the timeliness of the Department's response cannot be established with certainty. However, he does not complain about the timeliness of the agency's response.
2 Presumably, Mr. Tyus' request was directed at written or recorded statements.
3 Again, we must assume that Mr. Tyus' request referred to any written decision prepared by the final decision maker in which these topics were addressed.
4 This provision is 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."
5 In this case, the Louisville Metro Department of Corrections acts as designee. Accord, 02-ORD-82; 00-ORD-182.