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 Eastern Kentucky Correctional Complex (EKCC) violated the Open Records Act in its denial of inmate Glen L. Beard's April 19, 2005 request to inspect "my psychological file - mainly the psychological evaluation I took @ KSR in 93-94." For the reasons that follow, we conclude that EKCC properly denied the request.
On April 20, 2005, Tami Williams, EKCC Offender Information Services Specialist, denied the request "per KRS 61.878(1)(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly"
Following the denial of his request, Mr. Beard initiated the instant appeal to the Attorney General.
After receipt of notification of the appeal and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised, in relevant part:
Ms. Williams explained to me that the reason she denied Mr. Beard access to the psychological records, in particular those created in 1992 and 1993, was because the requested records are expressly marked "confidential. " I asked her to have the records reviewed by EKCC psychologist, Dr. Patrick Brown, for his determination whether the psychological records contained information the disclosure of which would constitute a threat to the security of the institution, Mr. Beard, or any other person under KRS 197.025(1).
?
KRS 197.025 may be applied to public records requested as an enactment of the General Assembly under KRS 61.878(1)(l).
In her response, Ms. Dennis further advised that EKCC Psychological Associate Patrick Brown reviewed the records in question and determined that disclosure of the records would likely be a danger to Mr. Beard or others because of the content of the records.
Although we find that EKCC's initial response was procedurally deficient, 1 we affirm the Department's substantive response denying Mr. Edge's request under authority of KRS 197.025(1) , in tandem with KRS 61.878(1)(l).
KRS 197.025(1), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 2 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). (Emphasis added.)
The Department in its supplemental response advised that allowing Mr. Beard to view his psychological evaluation would constitute a threat to the security of the institution, to Mr. Beard and others because of the contents of the records. The Department, in the proper exercise of its discretion, determined that release of the requested records would pose a threat to the safety and security of inmates, staff, and the institution. This office has recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion to deny inmates access to records. 96-ORD-179; 00-ORD-125. Specifically, we have held that Department may deny an inmate's request to inspect his psychological evaluation. OAG 92-25; 92-ORD-1314. We have also declined to substitute our judgment for that of the facility or the Department of Corrections, and will not do so here. Accordingly, we conclude the EKCC properly relied upon KRS 197.025(1) in its denial of Mr. Beard's request to inspect his psychological evaluation.
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.
Glen L. Beard, # 111626Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, 41472
Tami WilliamsEastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, 41472
Emily Dennis Department of Corrections2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 EKCC's initial response was procedurally deficient in failing to cite KRS 197.025(1) as the statutory basis for denying the request. The Department acknowledged this deficiency in its supplemental response and we will not belabor the point here.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -