Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Lee Adjustment Center violated the Kentucky Open Records Act in denying the request of Raughn Lewis to inspect "the records regarding the firing of Officer Sherry Gould" on the basis of KRS 197.025(1) or, in the alternative, KRS 197.025(2), both of which are incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Because the requested records do not contain a "specific reference" to Mr. Lewis, LAC properly relied upon KRS 197.025(2) in denying his request. Having established that disclosure of the requested records would constitute a threat to the security of LAC employees and inmates, LAC properly invoked KRS 197.025(1) as an alternative basis for denial.
On May 23, 2005, Mr. Lewis submitted the request at issue for the purpose of preparing a civil complaint. In a timely written response, Bobby Moore, LAC Records Custodian, denied Mr. Lewis's request. Citing KRS 197.025, "which allows CCA/LAC to withhold records that constitute a threat to the security of the institution," Mr. Moore explained that individual witness statements contain "sensitive information relating to the internal security of the institution." According to Mr. Moore, these statements "are treated as confidential restricted information." 1 Reiterating his reason for requesting the records, which has no bearing on the analysis, Mr. Lewis initiated this appeal by letter dated June 1, 2005. 2
Upon receiving notification of Mr. Lewis's appeal from this office, Sherril Gautreaux, Assistant General Counsel, Operations, Corrections Corporation of America, elaborated upon the position of LAC. According to Ms. Gautreaux, the records requested "are investigative documents surrounding employment and security matters relating to Ms. Gould and the institution and do indeed contain individual witness statements." Citing 03-ORD-190 and 04-ORD-180, Ms. Gautreaux correctly notes that the Attorney General has consistently affirmed denials by correctional facilities of requests for documents, the release of which would constitute a security threat to the institution. Elaborating upon the position of LAC, Ms. Gautreaux explains:
CCA employees write these incident statements in order to memorialize events that occur. They do so without fear that their statements will be scrutinized by their peers, inmates, neighbors or the media. We ask our employees to write statements that if released could legitimately put them in harm's way. If inmates find out through the media or otherwise that specific employees made certain statements, employees may be put in danger. Likewise, an inmate could read a confidential statement of another inmate and then label the inmate a "snitch. " In a correctional setting a snitch can be subject to retaliation of all sorts to include serious assault.
In addition, [KRS] 197.025(2) states that "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 contains a specific reference to that individual. The "firing of Officer Sherry Gould" does not contain a specific reference to Mr. Lewis and is in no way related to any actions surrounding Mr. Lewis.
Since the records are exempt under KRS 197.025(2), there is no basis upon which to conclude that LAC violated the Kentucky Open Records Act in this case.
Because the position of LAC as articulated on appeal is consistent with governing precedent, this office affirms the denial of Mr. Lewis's request by LAC in its entirety.
With respect to the applicability of KRS 197.025(2), CCA correctly argues that Mr. Lewis is not entitled to inspect or receive copies of those existing records which are responsive to his request. On this issue, 04-ORD-205 3 and 04-ORD-071, copies of which are attached hereto and incorporated by reference, are controlling on the facts presented. In the alternative, KRS 197.025(1) authorizes LAC to withhold the requested records. Having consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in determining whether disclosure of requested records would constitute a threat to the security of the inmate requester, any other inmate, the correctional staff, the institution, or any other person, this office has declined to substitute its judgment for that of correctional facilities or the Department of Corrections; the instant appeal presents no reason to depart from this approach. Because CCA/LAC has satisfied its burden of proof relative to KRS 197.025(1), LAC may properly withhold the requested records on this basis as well. In our view, the analysis contained in 05-ORD-034, a copy of which is attached hereto and incorporated by reference, is equally applicable here.
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:
Raughn Lewis, #182879Lee Adjustment CenterP.O. Box 900Beattyville, KY 41311
Bobby MooreRecords CustodianLee Adjustment CenterP.O. Box 900Beattyville, KY 41311
Sherril GautreauxAssistant General Counsel, OperationsCorrections Corporation of America10 Burton Hills BoulevardNashville, TN 37215
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services2439 Lawrenceburg Rd.P.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 In closing, Mr. Moore further asserts that "personnel files are not for public viewing." Because our analysis relative to KRS 197.025(2) is equally applicable as to those records, further elaboration is unnecessary. However, Mr. Moore's assertion is not accurate outside this context. See 04-ORD-141; 03-ORD-012.
2 In the event that Mr. Lewis is not permitted to inspect the records, Mr. Lewis requests that his wife, Nicole Matheson Lewis, be granted access on his behalf. As in 02-ORD-82, sufficient indicia exists to establish an "identity of purpose" between the inmate and the requester which precludes Mrs. Lewis from gaining access. Conclusively resolving this issue, the Attorney General has observed:
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.
02-ORD-82, p. 5, citing 00-ORD-182, p. 5. See 04-ORD-214. In short, an inmate is not entitled to access indirectly records which he is prohibited from accessing directly.
3 In 04-ORD-205, this office also reiterated that private providers such as CCA are subject to the provisions of the Open Records Act, including those provisions incorporated into the Act by operation of KRS 61.878(1)(l), based upon the mandatory language of KRS 197.510(7). Accordingly, no credible argument can be made that KRS 197.025(1) and (2) do not apply here.