Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Eastern Kentucky Correctional Complex (EKCC) violated the Open Records Act in the disposition of Daphne Hopkins' six (6) open records requests for certain institutional records regarding security staff shifts, daily rosters, call-in logs, time and attendance records, memo on directive sick leave, and roll call log on tardiness, during the period of 01-1-04 through 07-30-04. For the reasons that follow, we conclude that because the Warden of EKCC has determined that disclosure of the requested records would constitute a threat to the security of EKCC, the agency properly relied upon KRS 197.025(1) in denying Ms. Hopkins' requests.
The requests, received by the agency on August 2, 2004, and the agency response to each, are summarized by the response of Linda May, Personnel Administrator, EKCC, dated August 9, 2004. In her response to Ms. Hopkins' request, she advised in relevant part:
1. Computer generated entry/exit logs dated 01-01-04 thru 07-30-04 for security staff 8-4 shift Senior Captain to Correctional Officers.
As previously advised, you are entitled to receive a copy of your own computer generated entry/exit log. Your request for computer entry/exit logs for the remainder of the 8-4 security staff is denied pursuant to KRS 61.878(1)(a), since disclosure of these records would constitute a clearly unwarranted invasion of personal privacy. Pursuant to KRS 61.878(1)(l) and KRS 197.025(1), the Warden has determined that disclosure of this record of the comings and goings of individual employees from EKCC in response to an open record request constitutes a threat to security of the institution and potentially to the individual employees of this institution since disclosure of these records could enable a requester to determine (1) when posts filled by these individuals are either unmanned or in a state of change; and (2) when these individuals may be found in close proximity to the institution for purposes of harassment.
2. Daily rosters for security staff from 01-01-04 thru 07-30-04. From Senior Captain to Correctional Officers.
The daily staff roster, also known as duty roster, is an internal memorandum prepared by the shift supervisor for the Deputy Warden of Security and Senior Captain. Pursuant to KRS 61.878(1)(l) and KRS 197.025(1), your request for a copy of this record is denied for security reasons. The duty roster, particularly as requested over a period of time, will show patterns of staffing, including which posts are filled as opposed to those that are periodically unmanned, and will show where the institution would be vulnerable to outside attack, escape attempt or hostage taking.
3. Call-in log of security staff from 01-01-04 thru 07-30-04 from Senior Captain to Correctional Officers.
4. Time and attendance records from 01-01-04 thru 07-30-04 for Security Staff on 8 to 4 shift from Senior Captain to Correctional Officers.
You are entitled to a copy of your own time and attendance records from January through July 2004 (meaning your time sheets and time card), upon pre-payment for copies of these public records. However, your request for time and attendance records for all EKCC staff on 8-4 shift from 01-01-04 thru 07-30-04 is denied pursuant to KRS 61.878(1)(a), since disclosure of these records would constitute a clearly unwarranted invasion of personal privacy of individual employees. Once again, pursuant to KRS 61.878(1)(l) and KRS 197.025(1), the Warden of EKCC has also determined that public disclosure of these records for approximately 117 individuals who constitute the dayshift security staff at EKCC constitutes a threat to the security of the institution and potentially to the individual employees whose records you request since it will enable a requester to determine (1) when posts filled by these individuals are either unmanned or in a state of change; and (2) when these individuals may be found in close proximity to the institution for purposes of harassment.
Finally, this request places an unreasonable burden on the EKCC personnel office pursuant to KRS 61.872(6). To fulfill your request, the institution will be required to notify every individual whose payroll records you seek prior to release of the records. Additionally, to fulfill your request will require the review and redacting of more than 1000 timesheets compiled over the 7 month period, all of which contain personal information such as social security numbers and home addresses.
5. Most recent memo on directive sick leave for security staff.
There is no record responsive to your request for a memo on directive sick leave for security staff. . . .
6. Roll call log on tardiness held by Lt. Bill Callahan dated 01-01-04 thru 07-30-04.
Please be advised there is no public record maintained by the Eastern Kentucky Correctional Complex (EKCC) responsive to your request. The Open Records Act does not require agencies to create records or to provide information. 95-ORD-48. The roll call log is prepared by shift supervisors to assist in preparation of the duty roster and destroyed after the duty roster has been prepared.
On August 15, 2004, Ms. Hopkins initiated this appeal to the Attorney General utilizing a typewritten form that identifies alleged agency violations by "check[] off in the referral box." Ms. Hopkins "checked off":KRS 61.880(1)The Three Days to answer requirement.KRS 61.872(2)Application to Inspect.KRS 61.872(5)Explanation for Denial.KRS 61.872(6)Reasons must be by Clear and ConvincingEvidence.
After receipt of notification of the appeal and a copy of Ms. Hopkins' form letter of appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, Office of Legal Services, provided this office with a response to the issues raised in the appeal. Elaborating on EKCC's response, Ms. Dennis explained, in relevant part:
EKCC Personnel Administrator did not violate the open records act by failing to respond within three (3) days as set forth in KRS 61.880(1). In KRS 197.025, the legislature placed specific restrictions on access to inmate and correctional facility records that apply to Ms. Hopkins' request made to EKCC. KRS 197.025(7) states as follows:
Ms. Hopkins' open records requests dated 8/1/2004 were received by Ms. May on Monday, 8/2/04. Within 5 business days, on 8/9/04, Ms. May sent Ms. Hopkins a letter including final responses to each of her six (6) requests. Therefore, Ms. May did not violate KRS 61.880(1) by her response made in compliance with KRS 61.872(2).
There is also no basis upon which to conclude that EKCC Personnel Administrator Linda May violated the open records act on basis of KRS 61.872(2) Application to inspect. KRS 61.872(2) specifically states as follows:
KRS 61.872(3) continues "A person may inspect the public records: (a) During the regular office hours of the public agency; or (b) By receiving copies of the public records from the public agency through the mail." Each of the five (5) requests submitted with Ms. Hopkins' appeal contemplate receipt of copies of the records requested as evidenced by her placement of the numerical figure "1" in the blank for "Number of copies of each document requested @ 10 cents per page." Since Ms. Hopkins did not request to inspect records, there is no basis upon which to conclude Ms. May violated KRS 61.872(2) by her response.
There is no basis for a conclusion that Linda May violated KRS 61.872(5). KRS 61.872(5) states as follows:
KRS 61.872(5) has no application to the facts of this appeal, since the records requested were not in use or storage, no additional time was necessary to obtain the records requested, and Ms. May's response was complete and final within the five (5) business day time frame set forth in KRS 197.025(7).
Finally, Ms. Hopkins alleges that EKCC Personnel Administrator Linda May fails to satisfy the burden of showing that, by clear and convincing evidence, her request for access to public records should be denied. 1
Because the Warden of EKCC has determined that disclosure of the requested records would constitute a legitimate threat to the security of EKCC for the reasons set forth by the institution in its initial response, EKCC properly relied upon KRS 197.025(1) in denying Ms. Hopkins' requests.
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.
KRS 197.025(1) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which provides "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are among those records excluded from the application of KRS 61.870 to 61.884.
In 04-ORD-017, at pages 3-4, in discussing the application of KRS 197.025(1), this office explained:
By enacting KRS 197.025(1), "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; 03-ORD-190, supra. In construing the expansive language of this provision, 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; 03-ORD-190, supra. Application of this 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; 03-ORD-190, supra.
Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from the public based on KRS 197.025(1) for conflict sheets (OAG 91-136); psychological evaluations of inmates (OAG 92-25, 92-ORD-1314); facility canteen records (94-ORD-40, 96-ORD-209, 97-ORD-25); personnel records of correctional officers (96-ORD-179, 96-ORD-182, 96-ORD-204); facility deficiency reports (96-ORD-222); records confirming that inmates submitted to HIV testing (96-ORD-243); inmate honor dorm waiting lists (97-ORD-33); records documenting the procedures employed in an execution (97-ORD-51); and incident reports (03-ORD-190).
KRS 197.025 is broad in scope and vests the correctional facility with a great deal of discretion in the release of records maintained at its facilities. However, this exercise of discretion is not unfettered. 96-ORD-179. There must be some brief explanation as to how release of the requested records would constitute a threat to the institution or institutional staff or inmates. 96-ORD-182.
In its response, EKCC explained that disclosure of the entry/ exit logs for the 8 to 4 shift would pose a threat to the security of the institution because disclosure of these records could enable a requester to determine (1) when posts filled by these individuals were either unmanned or in a state of change; and (2) when these individuals may be found in close proximity to the institution for purposes of harassment; that disclosure of the daily rosters for the security staff, particularly as requested over a period of time, would show patterns of staffing, including which posts were filled as opposed to those that were periodically unmanned, and would show where the institution would be vulnerable to outside attack, escape attempt or hostage taking; that disclosure of time and attendance records for the security staff would enable a requester to determine (1) when posts filled by these individuals were either unmanned or in a state of change; and (2) when these individuals may be found in close proximity to the institution for purposes of harassment. 2
Thus, the EKCC, in the proper exercise of its discretion under KRS 197.025(1), determined that release of these requested records could pose a threat to the safety and security of inmates, staff, and the institution and explained how release of the records could constitute such a threat. As noted above, this office has recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion to deny inmates and the public access to records that would pose a threat to security. 96-ORD-179; 00-ORD-125. We have also declined to substitute our judgment for that of the facility or the Department of Corrections, and will not do so here. 04-ORD-017. Accordingly, we conclude the EKCC properly relied upon KRS 197.025(1) in its denial of Ms. Hopkins' request for copies of the entry/exit logs, the daily rosters for the security staff, the duty rosters, and the time and attendance records for the security staff on the 8 to 4 shift from 01-01-04 through 07-30-04. 3
We next address the EKCC's response affirmatively advising Ms. Hopkins that the requested "call-in log of security staff from 01-01-04 thru 07-30-04," the "most recent memo on directed sick leave for security staff, " and "roll call on tardiness" did not exist. This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, the EKCC's actions, in advising Ms. Hopkins that the records she was seeking did not exist, was proper and consistent with the requirements of the Open Records Act and did not constitute a violation of the Act.
Addressing the procedural issues, we find that the EKCC timely responded to the request within five business days as required by KRS 197.025(7). Moreover, since Ms. Hopkins did not request to inspect the records, but asked for copies, and the EKCC timely responded to her requests, we find no procedural violation of KRS 61.872(2) or KRS 61.872(5).
Finally, in a reply to the EKCC's supplemental response, Goble Cantrell, on behalf of Ms. Hopkins, stated that they needed these files "in order to prove our case of unfair and unequal treatment between employees at EKCC on a mass scale, specifically concerning placement on Directed Sick Leave. " Although Ms. Hopkins' purpose in seeking access to the requested records may be compelling, this office has repeatedly held that the purpose for which an individual makes a request under the Open Records Act is not relevant and the Act should not be used as substitute for discovery. 98-ORD-196; 96-ORD-138. Moreover, the Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Our review is confined to the issue of whether the EKCC violated the Open Records Act in its handling of Ms. Hopkins's request, which, as noted above, we concluded it did not. Avenues of relief, other than the Open Records Act, must be pursued to address the complaint of unfair and unequal treatment between employees of EKCC.
A party aggrieved by this decision may appeal it by initiating an 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.
Daphne HopkinsEastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Linda MayPersonnel AdministratorEastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Emily DennisJustice and Public Safety CabinetOffice of Legal Services2439 Lawrenceburg RoadP. O. Box 2400Frankfort, KY 40602
Footnotes
Footnotes
1 Because we find that EKCC properly denied access to the requested records under KRS 197.025(1), we need not address the issue of whether compliance with Ms. Hopkins' records request would place an unreasonable burden upon the agency, pursuant to KRS 61.872(6).
2 KRS 197.025(1) extends protection to records "if the disclosure is deemed by the commissioner of the department [of corrections] or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." Mindful that "the Legislature clearly intended to grant any member of the public as much right to access to information as the next," Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), and that if these records are disclosed to Ms. Hopkins they must be disclosed to any and all requesters (regardless of the purpose for which they are sought), we believe these concerns for security must be factored into our analysis. See, 98-ORD-138.
3 In 99-ORD-72, this office concluded that the EKCC had improperly denied access to the time and attendance records for its security staff, under authority of KRS 61.878(1)(a), and held that the records should be made available to the requester after redaction of confidential information. However, the facts in 99-ORD-72 are distinguishable from the instant appeal, in that, in 99-ORD-72, the Warden did not make a determination that release of the time and attendance records in that case could pose a threat to the institution. In the instant appeal, such a determination by the Warden was made.