Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act by returning the request submitted by McClellan Gaines on September 8, 2005, because Mr. Gaines failed to submit his request in compliance with 501 KAR 6:020, Corrections Policy and Procedure (CPP) 6.1. Because an inmate must accept the necessary consequences of his confinement, including policies relative to requests for public records, and CPP 6.1 (requiring inmates to provide certain identifying information and submit requests by institutional mail to the Open Records Coordinator) , represents a proper exercise of the broad discretion granted to the Department of Corrections in matters related to the safety, security, and operation of institutions such as EKCC, this office finds no error in the response of EKCC to his request.
Upon receiving notification of Mr. Gaines' appeal from this office, Emily Dennis, Staff Attorney, DOC, responded on behalf of EKCC. In relevant part, Ms. Dennis advises this office as follows:
By undated response, Ms. Litteral informed Mr. Gaines as follows: "This is not the proper procedure for an open records request. Please see your CTO for guidance." In addition, Ms. Litteral informed Mr. Gaines, "Open [R]ecords requests should be forwarded to the open records coordinator (Sharon Rose) with the appropriate money authorization. "
Ms. Litteral properly responded to Mr. Gaines' request, because Mr. Gaines failed to submit his request in compliance with Dept. of Corrections open records policy. Pursuant to 501 KAR 6:020, Corrections Policy and Procedure (CPP) 6.1, an inmate is required to submit an open records request by institutional mail to the open records coordinator. [Footnote omitted] The request shall include the following identification information of the inmate requester: (1) The inmate's name and institution number; (2) the inmate's cell, room or housing assignment; and (3) a reasonably particular description of the record being requested. [Footnote omitted] The responsibilities of the open records coordinator of an institution include as follows: (1) Date stamp and log in all requests upon receipt; (2) immediately forward the request to the custodian for a response; and (3) ensure that all responses are recorded on the log sheet in a timely manner. The coordinator is not, however, responsible for responding to the request, unless the coordinator is the custodian of the requested record. [See CPP 6.1 at p. 4, item VI.C.1.-2.]
The requirement that an inmate submit an open records request via institutional mail to the open records coordinator exists so that prison authorities can maintain order and security in the institutional setting. KRS 197.025(1) and KRS 197.025(4). 1 Prison security and safety are well-recognized, legitimate penological interests. The U.S. Supreme Court has noted that judgments regarding prison security "'are peculiarly within the province and professional expertise of corrections officials, and in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.'" Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2260, 96 L. Ed. 2d 64 (1987), quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S. Ct. 2800, 2806, 41 L. Ed. 2d 495 (1974).
As noted by Ms. Dennis, this office has held that "an institution's denial of an inmate open records request due to failure of the inmate to include inmate identification information required by 501 KAR 6:020, [CPP] 6.1" does not violate the Act because the information is necessary "for the institutional records custodian to verify the identity of the inmate requesting the public records. 04-ORD-004, see also KRS 197.025(2) ." Acknowledging that Mr. Gaines is correct in his contention that an inmate is "not required to submit an authorization to use inmate account funds when" he is requesting an "inspection of public records as opposed to copies," Ms. Dennis argues that Ms. Litteral's notation to this effect does not constitute a violation since Mr. Gaines "failed to properly submit his request in the first place." Having reviewed the relevant authorities, this office affirms the position of EKCC, as articulated by Ms. Dennis, in its entirety.
In addressing the unique issues surrounding access to public records in this context, the Attorney General has consistently recognized:
An inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. Although, as we have recently observed, "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof," an inmate's movements within the facility are presumably restricted . . . Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records.
95-ORD-105, p. 3, citing 94-ORD-90, p. 2. See also 05-ORD-080; 92-ORD-1136; OAG 91-129; OAG 89-86; OAG 82-394; OAG 79-582; OAG 79-546. However, correctional facilities are not authorized to adopt or implement policies or procedures that unreasonably delay access. Id.
As correctly observed by Ms. Dennis, this office upheld the validity of CPP 6.1 in 04-ORD-004, a copy of which is attached hereto and incorporated by reference. More specifically, the Attorney General held that the denial by EKCC of the inmate request at issue for failure to include the inmate identification information required by CPP 6.1 was "proper and consistent with its policies and procedures relating to inmate open records requests," as well as KRS 197.025(2), 2 incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 3 04-ORD-004, p. 3. Although a separate but related procedural requirement (CPP 6.1 VI.B.2. rather than VI.B.1.) was the basis for denial in this instance, the reasoning of 04-ORD-004, to the extent applicable, is equally controlling here.
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." 04-ORD-017, p. 4; 96-ORD-209, p. 3. 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. 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." 04-ORD-017, p. 5; 96-ORD-204, p. 2. Since its enactment in 1990, this office has upheld denials by correctional facilities of various inmate requests and requests from the public based on KRS 197.025(1). See 03-ORD-190 (incident reports); 97-ORD-51 (records documenting the procedures employed in an execution); 97-ORD-33 (inmate honor dorm waiting lists); 96-ORD-243 (records documenting that inmates submitted to HIV testing); 96-ORD-222 (facility deficiency reports); 96-ORD-204, 96-ORD-182, and 96-ORD-179 (personnel records of correctional reports); 97-ORD-25, 96-ORD-209, 94-ORD-40 (facility canteen records); 92-ORD-1314 and OAG 92-25 (psychological evaluations of inmates) ; OAG 91-136 (conflict sheets) .
Citing KRS 197.025(1) and KRS 197.025(4), 4 the DOC asserts that inmates are required to submit requests via institutional mail to the Open Records Coordinator "so that prison authorities can maintain order and security in the institutional setting." As correctly observed by Ms. Dennis, prison security and safety are "well-recognized, legitimate penological interests." In a proper exercise of its discretion, the DOC adopted 501 KAR 6:020, CPP 6.1.VI.B.2., requiring an inmate to forward his request by institutional mail to the Open Records Coordinator, for the legitimate purpose of maintaining order and security at institutions such as EKCC. Our office has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in determining when a threat is posed to the safety and security of the inmates, staff and institution. 03-ORD-190, p. 5; 00-ORD-125; 96-ORD-179. Accordingly, the Attorney General has declined to substitute his judgment for that of correctional facilities or the DOC in this area; the instant appeal presents no reason to depart from this approach. In short, the actions of EKCC relative to Mr. Gaines' request did not violate the Open Records Act.
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.
McClellan Gaines, # 167658Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Sharon RoseOpen Records Coordinator Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person 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.
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2 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 contains a specific reference to that individual.
3 Among those records excluded from application of KRS 61.870 to 61.884 by KRS 61.878 are: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l).
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4 KRS 197.025(4) provides:
KRS 61.872 to the contrary notwithstanding, the Department of Corrections shall refuse to accept the hand delivery of an open records request from a confined inmate.
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