Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Green River Correctional Complex violated the Open Records Act in denying Teresa Shanklin's December 13, 2006, request for a copy of "the entire investigation and initial report . . . on Ann Page allowing inmates to use her computer for emailing purposes, to include but not limited to her dismissal from employment . . ." and a copy of "any directive to initiate a pat-down on staff members on October 19, 2006, in A building and who was directed to participate in the search process." For the reasons that follow, we affirm GRCC's denial of Ms. Shanklin's request for the investigative file but find that additional action is required relative to her other requests.
In a response dated December 21, 2006, Lt. Steve Ford denied Ms. Shanklin's request. With reference to her request for records relating to the internal affairs investigation of Ann Page, Lt. Ford invoked KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), explaining that "public disclosure of this internal investigation which revealed serious security breaches in the institution constitutes a threat to security of the institution." Additionally, Lt. Ford explained that "Ms. Page's dismissal from employment . . . is not possessed by this office." With reference to Ms. Shanklin's request for any directive relating to the October 19, 2006, pat-down search of staff, Lt. Ford advised that no responsive record exists.
Shortly thereafter, Ms. Shanklin initiated this appeal, noting that "the investigation is closed and those involved have been terminated from their position [sic]," and asserting that "the law requires these records shall be open after enforcement action is completed." Ms. Shanklin, who occupies the position of Offender Information Supervisor at GRCC, indicated that she did "not intend to share this information with the general public even though they have a right to know as well." In closing, Ms. Shanklin expressed skepticism about the nonexistence of a record responsive to her request for the pat-down search directive.
In supplemental correspondence directed to this office following commencement of Ms. Shanklin's appeal, GRCC amplified on its position:
[T]he denial was a discretionary decision by GRCC Warden Patti Webb, as the designee of the Commissioner for the Kentucky Dept. of Corrections (KY DOC). The position of Warden has the authority and responsibility to manage and direct the total operation of the institution. See CPP 3.13. [Footnote omitted.] Warden Webb is responsible for the security of the institution, inmates housed therein and correctional staff who work there. See CPP 3.13.
. . .
[Ms. Shanklin] mischaracterizes the investigation as an investigation of inappropriate computer use, which it was not. The investigation involved allegations that an employee had developed an inappropriate relationship with an inmate, in violation of the KY DOC Code of Ethics. See CPP 3.5 [Footnote omitted.] Any time a staff person and inmate develop an inappropriate relationship, security of the institution is compromised. Inmate letters and interviews are included in the investigation . . . . The Warden has a responsibility to protect these inmates from rumors or harassment by staff regarding the investigation.
Turning to the second part of Ms. Shanklin's request, GRCC observed:
"Pat-down search" is defined by CPP 9.8. [Footnote omitted.] Under CPP 9.8, employees shall be subject to pat down searches at any time if authorized by the shift supervisor. CPP 9.8 does not require a record of this authorization to be created. Pursuant to Memorandum of Understanding regarding Employment at Green River Correctional Complex, [Ms. Shanklin] expressly waived the right to freedom from personal searches. [Footnote omitted.] Over a four (4) day period dating from October 16, 2006 - October 19, 2006, GRCC employees on all shifts and in the administration building were searched, including [Ms. Shanklin]. This institution-wide search was authorized by GRCC Warden Webb; however, no record of the directive was or is required to be maintained. There is no basis whatsoever to conclude that [Lt. Ford] has conveniently misplaced written records regarding the directive. He did not make the directive and was not required to maintain a copy.
GRCC did not elaborate on the denial of Ms. Shanklin's request for Ms. Page's "dismissal from employment" other than to reiterate that Lt. Ford "informed [Ms. Shanklin] that he did not possess a copy of Ms. Page's dismissal documents . . . ."
Unable to resolve the issue on appeal on the facts presented, on February 15, 2007, this office requested additional documentation from GRCC for substantiation, and a copy of the disputed records, pursuant to KRS 61.880(2)(c). Specifically, we asked that GRCC "elaborate, to the extent feasible, on the statement that '[a]ny time a staff person and an inmate develop an inappropriate relationship/security of the institution is compromised'" and that disclosure of the requested records "would clearly compromise security of the facility in addition to compromising the safety of inmates. " On March 2, 2007, GRCC responded to our inquiry, advising as follows:
When an inmate makes statements to Internal Affairs alleging wrongdoing by correctional staff, or correspondence between an inmate and employee is discovered that shows the employee has crossed the line in developing a relationship with the inmate that is prohibited by CPP 3.1, the risk in disclosing these Internal Affairs records is that the inmate will be identified and subject to retaliation by other KY DOC employees or inmates. It is a basic tenet of correctional practice to protect the confidentiality of inmates who are interviewed in connection with a facilities' Internal Affairs investigation of an employee who has allegedly developed an inappropriate relationship with an inmate. This tenet of protecting the confidentiality of inmates is also reflected in CPP 9.18 relative to the use of confidential informants in prison disciplinary proceedings. [Footnote omitted.]
. . .
The disclosure of Internal Affairs investigations conducted on correctional employees where inmates' statements and letters are involved, and further where the requesting individual is a fellow employee who had no involvement in the investigation, creates the risk of retaliation against the inmates and even other employees who provided information to Internal Affairs. Inmates would hesitate to come forward with information of employee wrongdoing for fear of being labeled a "rat". Disclosure would fuel rumors and gossip among employees and inmates both. Absolutely no public purpose would be served by the disclosure. Instead, disclosure would impede a valid public purpose - the safety and security of the GRCC - where more than nine hundred (900) inmates are housed, and more than two hundred and fifty (250) people work.
In view of the Kentucky Supreme Court's holding that "[t]he public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions," and that "inspection of records may reveal whether the public servants are indeed serving the public . . .," 1 we disagree that "[a]bsolutely no public purpose would be served by disclosure" of the requested records. Clearly, disclosure of the requested records would advance the public's right to know that a GRCC employee failed to properly discharge her public duties and that GRCC properly discharged its public duties by dismissing her. Nevertheless, we find that the legislative determination that public records may be withheld if their disclosure is deemed by the Commissioner of the Department of Corrections, or his designee, to constitute a threat to institutional security, codified at KRS 197.025(1) and incorporated into the Open Records Act by operation of KRS 61.828(1)(l), 2 must, in this case, eclipse the public's right to know.
As noted, 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.
"In enacting this provision," the Attorney General has opined, "the legislature has created a mechanism for prohibiting . . . access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; see also, 07-ORD-039 and authorities cited therein. In construing the expansive language of this provision, the Attorney General has further recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny . . . access to records." 96-ORD-179, p. 3. Application of the provision is not limited to inmate requesters or inmate records, but extends to any open records requester and any institutional records the disclosure of which is deemed to constitute a threat to security.
Since its enactment in 1990, the Office of the Attorney General has affirmed denials of inmate requests and requests from the public based on KRS 197.025(1) in a variety of factual contexts. See, e.g., 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); incident reports (03-ORD-190); entry/exit logs, daily rosters for security staff, and time and attendance reports for security staff (04-ORD-180); name of medical staff member who provided statement that appeared in internal affairs report (06-ORD-016); extraordinary occurrence report (07-ORD-039). Whatever her intended use of the requested records, Ms. Shanklin stands in the same shoes as any other requester under the Open Records Act as the Act incorporates KRS 197.025(1). In so holding, we are guided by the fundamental principle that "the Legislature clearly intended to grant any members of the public as much right to access to information as the next," Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994); accord, OAG 82-233; OAG 89-76; OAG 92-30; 01-ORD-8; 05-ORD-025; and that "[w]e must also consider the fact that other parties . . . would have the same access under the Open Records Act as" Ms. Shanklin. Id. at 829. Absent proof of an abuse of the discretion vested in the warden under KRS 197.025(1), we will not substitute our judgment for that of the warden but will instead affirm the denial of Ms. Shanklin's request. 3
GRCC provides sufficient proof to support its argument that disclosure of the investigative file Ms. Shanklin seeks constitutes a threat to the security of the inmate who participated in the internal affair investigation that resulted in the file's creation, exposing him to potential retaliation from other inmates or DOC employees. Inasmuch as "the denial was a discretionary decision by GRCC Warden Patti Webb," we must assume that she considered the facts of this particular case in reaching her decision rather than considering only "basic tenets of correctional practice." Based on this assumption, and absent proof to the contrary, we affirm GRCC's denial of this portion of Ms. Shanklin's request.
Having addressed the first part of Ms. Shanklin's request, we turn to her request for Ms. Page's dismissal and the pat-down search directive. Lt. Ford's responded to these requests by advising Ms. Shanklin that Ms. Page's dismissal from employment "is not possessed by this office," and that "there are no written records responsive to her request" for the pat-down directive. Although he does not expressly so state, Lt. Ford's response intimates that another office may possess the dismissal. If so, we believe it was incumbent on Lt. Ford to "notify [Ms. Shanklin] and . . . furnish the name and location of the official custodian of the agency's public records" per KRS 61.872(4).
Similarly, GRCC's supplemental response to Ms. Shanklin's appeal states that "no records of the directive was or is required to be maintained" and that Lt. Ford "did not make the [pat-down] directive and was not required to maintain a copy." It is unclear from those statements whether a written directive was generated and subsequently destroyed in the normal course of business, and pursuant to proper records management practices, or was never generated and never existed. Given this ambiguity in the record on appeal, we believe it is incumbent on GRCC to clarify its response to this portion of Ms. Shanklin's request. If, in fact, no directive ever existed, GRCC must affirmatively so state. 01-ORD-38; 02-ORD-144. If, alternatively, a written directive was generated and subsequently destroyed, or simply not maintained by Lt. Ford, GRCC must so advise Ms. Shanklin. If a directive was generated and still exists in another office, it is incumbent on GRCC to "notify [Ms. Shanklin] and . . . furnish the name and location of the official custodian of the agency's public records" per KRS 61.872(4). Until it has done so, we find that GRCC's duties under the Open Records Act will not be fully discharged.
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.
Teresa Shanklin
Lt. Steve FordInternal Affairs Green River Correctional ComplexP.O. Box 9300Central City, KY 42330-9300
Patti Webb, Warden Green River Correctional ComplexP.O. Box 9300Central City, KY 42330-9300
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 Kentucky Board of Examiners of Psychologists v. Courier Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 328 (1992).
2 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.
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3 We reiterate that although the Attorney General has "[i]n general, . . . refused to substitute his judgment for that of the commissioner or his designee [,] . . . the discretion vested in them to deny . . . access to records for security reasons is not unfettered [,] . . . [and] an analysis of the propriety of the agencies' exercise of their discretion is case specific." 00-ORD-225, p. 7. Pursuant to KRS 61.880(2), this office is statutorily charged with the duty to decide whether agencies violated the Act in relying on KRS 197.025(1) to deny a request.
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