Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northpoint Training Center violated the Kentucky Open Records Act in denying the requests of Uriah M. Pasha for a "copy of order that puts me on isolated rec[reation]" and the "document used to place Uriah Pasha # 92028 on maximum assaultive status June 1, 2006." Because NTC has established that disclosure of the records requested would constitute a security threat to NTC correctional staff, and NTC itself, this office finds that NTC properly denied Mr. Pasha's requests on the basis of KRS 197.025(1), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l) .
In a timely written response, Jennifer Marye, Offender Information Specialist, denied Mr. Pasha's requests of July 7, 2006, and July 12, 2006, pursuant to KRS 197.025(1), because disclosure of the records requested "is considered to be a security threat to the institution and correctional personnel assigned to the SMU" due to his status. By letter dated July 16, 2006, Mr. Pasha initiated this appeal from the denial of his requests. Upon receiving notification of Mr. Pasha's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of NTC.
Elaborating upon the position of NTC, Ms. Dennis argues:
Mr. Pasha fails to demonstrate that the NTC violated the Kentucky Open Records Act by denying him access to records citing KRS 197.025(1). As noted by Mr. Pasha in his requests, he is [and] was on maximum assaultive status and restricted to isolated recreation. The record that NTC provided to the undersigned counsel as responsive to the request outlines several guidelines relative to NTC employees dealing with Mr. Pasha, to which Mr. Pasha, as an inmate, is not entitled [access or to] have a copy.[] An inmate has no constitutional right to be held in a prison system's general population or any particular part of an institution. Hewitt v. Helms, 459 U.S. 460, 476, 103 S. Ct. 864, 868-869, 74 L. Ed. 2d 675 (1983), see also Newell v. Brown, 981 F.2d 880-887 (6th Cir. 1992), cert. denied 510 U.S. 842, 114 S. Ct. 127, 126 L. Ed. 91 (1993). Further, inmates do not possess a constitutional right to any particular security classification. Moody v. Daggett, 429 U.S. 78, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976); Beard [no citation provided], supra. The Kentucky Supreme Court, in Mahoney v. Carter, [Ky., 938 S.W.2d 575 (1997)], considered the issues raised in Hewitt and Beard and held:
As of this date, prior to submitting or having mailed this response to the Office of [the] Attorney General, I received a copy of [a] letter dated July 28, 2006, from Mr. Pasha alleging that this response (which has not been submitted) is "false and misleading." Contrary to Mr. Pasha's claims in this letter, he is not entitled to know the reasons behind restrictions or security classifications imposed by the NTC. Contrary to Mr. Pasha's claim, there is no requirement that the NTC show "probable cause for the restrictions." 1
When a correctional facility produces a record which outlines guidelines relating to an inmate's security status and instructions for individual correctional staff to follow in dealing with an inmate, it is a record which a Warden may, in his discretion, withhold from disclosure under KRS 197.025(1), since disclosure of the record to the inmate would constitute a threat to the security of the institution and the individual employees whose job is to supervise the inmate. See also KRS 61.878(1)(l).
Based upon the foregoing, Ms. Dennis believes that NTC's denial of Mr. Pasha's requests should be upheld; we agree. Although constitutional issues are not justiciable in the context of an Open Records appeal, prior decisions of this office support Ms. Dennis' interpretation of KRS 197.025(1).
In our view, 06-ORD-026 and 05-ORD-228, copies of which are attached hereto and incorporated by reference, are controlling on the facts presented. Pursuant to KRS 197.025(1):
KRS 61.884 and 61.878 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 virtue 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 application of KRS 61.870 to 61.884. In a line of decisions, this office has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in determining whether disclosure of records would pose a legitimate security threat. 06-ORD-026, p. 5, citing 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. Because the instant appeal presents no reason to depart from this governing precedent, the same outcome necessarily follows; the denial by NTC is affirmed.
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.
Footnotes
Footnotes
1 This office received a copy of Mr. Pasha's letter on July 31, 2006.