Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Little Sandy Correctional Complex violated the Kentucky Open Records Act in partially denying the request of Alex B. Tooley for copies of "all statements/occu[rrence] reports made by any medical dep[artment] employees to Lt. Helton or any other officials at this facility" from October 22, 2005, to November 7, 2005, regarding his confinement in segregation beginning on October 22, 2005, and "all other records/reports/notes pertaining to that matter." Because disclosure of the name redacted from the records provided to Mr. Tooley would constitute a legitimate security threat, LSCC properly relied upon KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Mr. Tooley access to the name.
On November 16, 2005, Mr. Tooley directed his initial request to "Open Records" at LSCC where the request was received on November 21, 2005; Tammy Buckler, Offender Information Services Supervisor, denied Mr. Tooley's request on November 28, 2005, due to "Insufficient Funds." 1 Having received an identical request from Mr. Tooley on December 12, 2005, 2 LSCC provided Mr. Tooley with an opportunity to inspect redacted copies of the responsive records on December 16, 2005, at which time Mr. Tooley declined to sign the certification or accept copies of the records offered to him free of charge. By letter directed to this office on December 28, 2005, Mr. Tooley initiated this appeal.
Upon receiving notification of Mr. Tooley's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of LSCC. In an interim response directed to this office on January 20, 2006, Ms. Dennis observes:
Mr. Tooley's appeal of LSCC's 11/28/05 response to his 11/21/05 request should be dismissed as untimely. Pursuant to KRS 197.025(3), any person confined in a penal facility shall challenge any denial of an open records request with the Attorney General by mailing or otherwise sending appropriate documents to the Attorney General within 20 days of the denial. Mr. Tooley's open records request shows a date-stamp for receipt by LSCC on 11/21/05. Ms. Tammy Buckler, LSCC Offender Information Services Supervisor, responded to Mr. Tooley's request on 11/28/05. The date of Mr. Tooley's appeal to your office is 12/28/05. Since Mr. [Tooley] initiated his appeal more than twenty (20) days after the denial, this portion of his request should be considered time-barred pursuant to KRS 197.025(3).
In short, Ms. Dennis is correct in this assertion. On this issue, 04-ORD-178, a copy of which is attached hereto and incorporated by reference, is controlling. Because Mr. Tooley is a "person confined in a penal facility," and he failed to challenge the denial by LSCC of his initial request within twenty days, as mandated by KRS 197.025(3), his appeal is untimely as to that denial.
On January 23, 2006, Ms. Dennis supplemented her response on behalf of LSCC, advising this office that "LSCC admits that it erred in its 12/16/2005 response to Mr. Tooley's request, by providing Mr. Tooley with an opportunity to inspect the redacted records but not providing copies of the records as requested." Accordingly, this office will not belabor the issue. On December 20, 2005, Ms. Buckler and Internal Affairs Lt. Keith Helton "attempted to provide Mr. Tooley with copies of the records to which" he was permitted access, but Mr. Tooley "refused to accept the acknowledgement or accept copies of records offered to him." Attached to Ms. Dennis' response are copies of the occurrence reports prepared by Ms. Buckler and Lt. David Dishman, memorandums from Ms. Buckler to Mr. Tooley, and from Lt. Helton to Mr. Green, the Detention Order of October 22, 2005, and Mr. Tooley's request of December 9, 2005, along with the response of LSCC and attachments. Although LSCC admits having initially erred in failing to provide Mr. Tooley with copies of the records identified as responsive to his request, the "limited redaction of the name of the medical staff member who provided the statement incorporated in Lt. Dishman's report should be upheld pursuant to KRS 197.025(1)," incorporated into the Open Records Act by operation of KRS 61.878(1)(l). When Mr. Tooley inspected the records, Lt. Helton informed him "there was a limited redaction of the staff member's name who requested to remain confidential for security reasons."
In this case, Mr. Tooley was placed in segregation pending investigation by Lt. Helton "into whether Mr. Tooley was attempting to pursue or develop a relationship unrelated to correctional activities with a non-inmate." Upon conclusion of the investigation, Mr. Tooley was released into the General Population. Since the medical staff member who "made statements to C/O Adkins which were incorporated into Lt. Dishman's report" wished to remain anonymous, the name of this individual is redacted from Lt. Dishman's report. As observed by Ms. Dennis, the "redaction of a staff member's name for security reasons" is analogous to the denial of a request for inmate conflict sheets upheld by this office in OAG 91-136. In conclusion, Ms. Dennis notes that LSCC began receiving inmates on May 18, 2005; any error was due to the "relative inexperience" of LSCC rather than "hostility" as alleged by Mr. Tooley. Consistent with governing precedent, this office finds that LSCC properly relied upon KRS 197.025(1) in partially denying Mr. Tooley's request.
Pursuant to KRS 197.025(1):
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.
As correctly observed by Ms. Dennis, this provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which "[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.
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. 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. 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.
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). In a proper exercise of its discretion, LSCC determined that releasing the name of the medical staff member whose statement was incorporated into the Internal Affairs report would pose a threat to the security of "any other person," namely, the unidentified staff member. In a long line of decisions, this office has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 00-ORD-125; 96-ORD-179. Accordingly, this office has declined to substitute its judgment for that of the correctional facility or the Department of Corrections; the instant appeal presents no reason to depart from this approach. In sum, LSCC did not violate the Open Records Act in redacting the name of the medical staff member on the basis of KRS 197.025(1).
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:
Alex B. Tooley, #178333Little Sandy Correctional ComplexRoute 5, Box 1000Sandy Hook, KY 41171
Tammy BucklerOffender Information Services SupervisorLittle Sandy Correctional ComplexRoute 5, Box 1000Sandy Hook, KY 41171
Emily DennisJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 With respect to the unique issues surrounding access to public records in this context, 05-ORD-080, a copy of which is attached hereto and incorporated by reference, is instructive.
2 On November 7, 2005, Mr. Tooley was released back into the General Population as evidenced by the Memorandum from Keith Helton, L.A. LT. to David Green, UAII (SEG), on November 4, 2005.