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 Northpoint Training Center (NTC) violated the Open Records Act in the disposition of Don K. Jackson's May 10, 2006, open records request for copies of the Daily Security Shift Roster for the October 22 and 23, 2004, and September 1, 2, 3, 4, and 5, 2004, for the 7 a.m. - 3 p.m. shift. For the reasons that follow, we conclude that the NTC properly relied upon KRS 197.025(1) in denying Mr. Jackson's request for unredacted copies of the requested rosters.
By letter dated May 12, 2006, Julie W. Benedict, Personnel Administrator, NTC, responding to Mr. Jackson's request, advised:
Shift rosters, in their entirety are considered exempt from disclosure based on KRS 197.025(1) as they define the extent to which the institution, its inmates and surroundings are secure. The Attorney General has held that the disclosure of unredacted rosters constitutes a threat to the security of the institution and potentially to the individual employees who comprise the security staff since disclosure would 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. See 04-ORD-180. Therefore, in response to your request, redacted copies of the rosters will be released to you and reflect only the post you were assigned to each of the days within the periods requested.
Subsequently, Mr. Jackson initiated the instant appeal, asserting that NTC's interpretation of KRS 197.025(1) was very broad and intended to keep him from getting the records; that the records were two years old and long past security concerns; and that NTC's practice, per the directive of the Warden, was to post the rosters each day at 6:30 a.m., 2:30 p.m., and at 10:30 p.m. (one for each shift) in the Staff Canteen, for the purpose of staff review for their job assignments prior to going on shift. He argued that the Staff Canteen was open to the public and the rosters could be seen by anyone that wishes to see them.
After receipt of notification of the 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 NTC's response, Ms. Dennis explained, in relevant part:
. . . Ms. Benedict provided Captain Jackson with redacted versions of the security shift rosters for the dates and time requested. Consistent with KRS 61.878(3) and KRS 61.878(4), Ms. Benedict redacted all other post assignments for the dates as these assignments did not pertain to Captain Jackson. . . .
Addressing Mr. Jackson's complaint that NTC interpreted KRS 197.025(1) broadly to prevent him from getting the records, Ms. Dennis countered that NTC's reliance upon KRS 197.025(1) was proper as disclosure would constitute a threat to the security of the institution. Expanding on NTC's original response, she stated:
Not only does the disclosure show when posts that are filled by individual employees are either unmanned or in a state of change, as cited by Ms. Benedict, but also the security staff roster shows 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. It should also be noted that this is not simply Julie Benedict's interpretation, as complained by Captain Jackson, but rather a discretionary decision by the Commissioner and the Warden, as the Commissioner's designee.
Addressing Mr. Jackson's contention that all documents requested are two years old and long past any security concerns, Ms. Dennis stated:
. . . [T]he KY DOC and its institutions, including NTC, consistently deny access to entire, unredacted copies of security shift rosters, regardless of the age of the roster. If the requester is named in the roster, then the roster is released to the requester only to the extent that record specifically pertains to the requester. In this case, Captain Jackson was the shift captain on several of those days and literally had responsibility for the records he requests, however, Captain Jackson also has knowledge that he cannot use shift rosters outside his official capacity as shift supervisor and therefore seeks to access copies of these rosters from KY DOC under the Kentucky Open Records Act. It is not within Captain Jackson's discretion to decide when disclosure of a security shift roster no longer constitutes a security threat for NTC. This discretion lies solely with the Commissioner and the Warden of NTC, pursuant to KRS 197.025(1) and KRS 61.878(1)(l). If the NTC and KY DOC must provide Captain Jackson copies of unredacted security shift rosters pursuant to this open records request, this sets a dangerous precedent whereby the Warden and Commissioner no longer control internal operating documents within a correctional institution.
Addressing Mr. Jackson's argument that the Staff Canteen was open to the public and the rosters could be seen by anyone that wished to see them, Ms. Dennis explained:
Finally, Captain Jackson is correct in his statement in item C. that security rosters are posted thirty (30) minutes prior to the onset of each shift at NTC. The roster is posted so that security staff members will know where they are assigned on a particular day. . . Captain Jackson notes that Warden Morgan required posting of the security shift rosters each day prior to the onset of each shift, however, he fails to report Warden Morgan's expectation that the security staff roster be removed from posting after the start of the shift.
For the forgoing reasons, we conclude that NTC properly relied upon KRS 197.025(1) in denying Mr. Jackson's request. In its supplemental response, NTC advised that the Commissioner of the Department of Corrections and the Warden of NTC, as the Commissioner's designee, have determined that disclosure of the security staff rosters would constitute a threat to the security of NTC.
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.
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. 04-ORD-180. 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 initial response, NTC explained that disclosure of the security staff rosters would pose a threat to the security of the institution because disclosure of these records would 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. Expanding its explanation in its supplemental response, NTC further explained because the security staff roster shows patterns of staffing, including which posts are filled as opposed to those that are periodically unmanned, it would show where the institution would be vulnerable to outside attack, escape attempt, or hostage taking.
Because the Commissioner of the Department of Corrections and the Warden of NTC, as the Commissioner's designee, in the proper exercise of their discretion under KRS 197.025(1), have determined that release of unredacted copies of the security staff rosters could pose a threat to the safety and security of inmates, staff, as explained by NTC in its responses, we conclude that NTC properly relied upon KRS 197.025(1) in its denial of Mr. Jackson's request for unredacted copies of the requested rosters. 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. 04-ORD-180. 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.
NTC advised that it provided Mr. Jackson with copies of the rosters that showed only the post to which he was assigned on the requested rosters, redacting all other post assignments for the requested dates as those did not pertain to him. This was consistent with KRS 61.878(3) and KRS 61.878(4).
KRS 61.878(3) provides:
No exemption of this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency. (Emphasis added).
By virtue of this provision, Mr. Jackson, a Senior Captain at NTC, is vested with a broader right of access to records relating to him than the general public has to the same records. Records that would otherwise be shielded from disclosure, such as preliminary drafts or notes pursuant to KRS 61.878(1)(i), or preliminary recommendations and memoranda in which opinions are expressed pursuant to KRS 61.878(1)(j), as to third persons, are accessible by Mr. Jackson if those records relate to him. However, there are four exceptions to this broad right of access; a public agency employee (including an applicant for employment) is not entitled to inspect records or information the disclosure of which is prohibited by federal law or regulation (KRS 61.878(1)(k)), or 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)).
As noted above, KRS 197.025(1), provides that 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." In its supplemental response, NTC explained that Department of Corrections and its institutions consistently deny access to entire, unredacted copies of security shift rosters. If the requester is named in the roster, the roster is released to the requester to the extent it specifically pertains to the requester. Thus, consistent with KRS 61.878(3), NTC provided Mr. Jackson copies of the rosters that reflected only the post he was assigned to each of the days within the periods requested, and, for the reasons set out above, properly redacted all other post assignments for the requested rosters, under authority of KRS 197.025(1), operating in tandem with KRS 61.878(1)(l).
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.
Don K. Jackson5832 Upper Brush CreekHustonville, KY 40437
Julie W. BenedictPersonnel Administrator Northpoint Training CenterP.O. Box 479Burgin, KY 40310
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601