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 Green River Correctional Complex (GRCC) violated the Open Records Act in its denial of Chris Hawkins' open records request for a "copy of 8/1/06 or 8/1/07 EOR by Jeremy Potts # 195800 concerning me and rape allegation(s)." For the reasons that follow, we conclude that GRCC properly denied the request on the basis of KRS 197.025(1), incorporated onto the Open Records Act in tandem with KRS 61.878(1)(l).
On January 29, 2007, GRCC received a request from Mr. Hawkins asking for copies of the following records:
1. Copy of reclassification form dated 12/13/05 with Gary Hayes as chairman;
2. Copy of reclassification form dated 1/13/06 with Rickie Williams as chairman; and
3. Copy of 8/1/06 or 8/1/07 EOR by Jeremy Potts # 195800 concerning me and rape allegation(s)."
In a timely response dated January 30, 2007, GRCC Offender Information Supervisor Teresa Shanklin provided Mr. Hawkins with a copy of the classification form requested in item #1, advised him that the record requested in item #2 does not exist, and denied his request for a copy of the EOR requested in item #3, under authority of KRS 197.025(1), KRS 197.025(2), and KRS 61.872(6). With respect to the application of KRS 197.025(1), Ms. Shanklin explained to Mr. Hawkins that "[t]he record being withheld has been determined a possible security threat to you, other inmates, or the institution."
Shortly thereafter, Mr. Hawkins initiated the instant appeal contesting GRCC's denial of request item #3.
After receipt of notification of the appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, provided this office with a response, on behalf of GRCC, to the issues raised in the appeal. In her response, Ms. Dennis advised, in relevant part:
First, to clear up any confusion regarding the Complainant's request, there is no "EOR by Jeremy Potts #195800 concerning me (the Complainant] and rape allegation(s)." There is, however, an extraordinary occurrence report (EOR) by GRCC Sgt. Lauren E. Simmons regarding the August 1, 2006 incident involving the Complainant and his former cellmate, Mr. Potts, which resulted in both inmates being transported separately to the Muhlenburg Community Hospital (MCH) in Greenville, KY for the administration of rape test kits. The EOR goes into detail regarding the steps taken to transport both inmates separately from the GRCC, including the telephone number of the cellular phone used by the transporting officer, the types and amounts of weapons, restraints, keys required and locations, and radio communications made to accomplish the transport. . . .
Ms. Dennis explained that the EOR was a step by step, minute by minute account of the actions taken by GRCC security personnel after the actions of the inmates were discovered and that disclosure of the EOR to the Complainant, who is one of two inmates named in the report, would pose a threat to the security of the institution and to the other named inmate in the EOR.
For the following reasons, we conclude that GRCC properly relied upon KRS 197.025(1) in denying Mr. Hawkins access to the requested EOR. KRS 197.025(1), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 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 [of Corrections], 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 enacting this provision, "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. 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).
In the proper exercise of its discretion, GRCC determined that release of the requested record would pose a threat to the safety and security of inmates and the institution. As noted above, GRCC explained that the EOR was a step by step, minute by minute account of the actions taken by GRCC security personnel after the actions of the inmates were discovered and that disclosure of information contained in the EOR to the Complainant, who is one of two inmates named in the report, would constitute a threat to the security of the institution and to the other named inmate in the EOR. 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. We have also declined to substitute our judgment for that of the facility or the Department of Corrections, and will not do so here. Accordingly, we conclude that the GRCC properly relied upon KRS 197.025(1) in its denial of Mr. Hawkins' request for a copy of the EOR. Because the foregoing is dispositive of this appeal, we need not address other reasons set out as a basis for denial of inspection of the requested record.
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 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.