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 January 5, 2007, request for copies of records relating to GRCC employees and inmates on the basis of KRS 61.872(6) and an intent to disrupt GRCC's essential functions. 1 Ms. Shanklin is employed by GRCC as Offender Information Supervisor and has filed an appeal with the Personnel Board in which she alleges a hostile work environment, discrimination, and retaliation. For the reasons that follow, we find that the record on appeal does not contain clear and convincing evidence of an intent to disrupt GRCC's essential functions but may be sufficient to establish a threat to security. Accordingly, we find that GRCC violated the Open Records Act in denying Ms. Shanklin's request on the basis of KRS 61.872(6) but that its reliance on KRS 197.025(1) was justified if, and only if, the same requests would have been denied any other records applicant.
From December 13, 2006, to December 22, 2006, Ms. Shanklin submitted thirteen requests to GRCC. Some of Ms. Shanklin's requests were multiple requests consisting of as many as six subparts. In the interest of brevity, we will not recite each of these requests, or GRCC's responses thereto, except to note that they were directed to various offices, e.g., the internal affairs office, the fiscal office, the personnel office, and the warden's office, and included communications relating to Ms. Shanklin, personnel records relating to GRCC employees, inmate records, operational records such as telephone logs, security logs, and expense receipts, and records relating to GRCC's ten year celebration and the death row dog program. GRCC responded to these requests, albeit in some cases belatedly, by providing Ms. Shanklin with 225 2 copies of responsive records, but notifying her on December 22, 2006, that although the facility would honor all pending requests, it "reserve[d] the right to refuse future requests because the number of requests and [her] demands for response are disruptive to the facility." Relying on KRS 61.872(6), Deputy Warden Ron Beck advised:
Fiscal Manager David Higgs . . . [states] that you approached him yesterday and advised him of your intent to file an open records appeal due to the fact that he did not have records ready for you to pick up yesterday. This office has records of 13 open records requests to GRCC that you have made since December 13, 2006, including hand-delivery of 2 requests made within 15 minutes following receipt of a response from the Internal Affairs Office on . . . December 21, 2006 . . . . [Y]our repeated requests, together with your comments, give this office reason to believe that these requests are disruptive to the essential functions of the facility.
In closing, Deputy Warden Beck advised Ms. Shanklin that, "because of the disruption, " all responses would thenceforward be mailed to her home address, not hand-delivered to her work station, and that to avoid any "conflict between [her] official duties [as Offender Information Specialist] and [her] requests,, which are personal," all future requests would be "directly coordinate[d]" by Warden Webb.
On January 5, 2007, Ms. Shanklin submitted a four part request to Warden Webb. By letter dated January 12, 2007, GRCC denied this request through Justice Cabinet General Counsel Jeff Middendorf on the basis of KRS 61.872(6) and the Warden's belief that Ms. Shanklin's "repeated requests are disruptive to the essential functions of the GRCC . . . ." Mr. Middendorf reiterated the arguments advanced by Deputy Warden Beck in his December 22 letter, and included a narrative breakdown of each of her 13 requests. In addition, he noted that Ms. Shanklin failed to follow Warden Webb's directive, relative to submission of her requests, by logging "the current personal request . . . in [her] official capacity prior to delivery to Warden Webb[,] . . . causing further disruption at GRCC." Citing KRS 61.878(1), Mr. Middendorf reminded Ms. Shanklin that she could "seek discovery of these records through the Personnel Board," but asserted that the Open Records Act "may not be used . . . to subvert the rules governing pre-trial discovery. " Shortly thereafter, Ms. Shanklin initiated this appeal.
In supplemental correspondence directed to this office following commencement of Ms. Shanklin's appeal, GRCC amplified on its position. Again reiterating earlier arguments relating to the number of requests received, their mode of delivery, and the reaction of staff to whom they were delivered and discussed, GRCC asserted that Ms. Shanklin's "request should not be viewed as a request from a member of the general public," but in light of her position at GRCC. In support, GRCC cited
Medley v. Board of Education, Ky. App., 168 S.W.3d 398 (2004), KRS 61.878(3) and 18A.020. It was GRCC's position that "[d]ue to [Ms. Shanklin's] superior position at GRCC as the open records coordinator, it is reasonable to infer that any statement made by [her] of an intent to file an appeal against a fellow employee . . . was disruptive of the agency . . . ." 3 GRCC reasoned:
Pursuant to CPP 3.1, an employee action which adversely affects the interest of Corrections is a 'conflict of interest. ' For [Ms. Shanklin] to inform Fiscal Manager Higgs of her personal intent to file an open records appeal against David Higgs (an agent of GRCC) constituted a conflict of interest because [her] official position is open records coordinator of [GRCC].
In response to this office's KRS 61.880(2)(c) request for additional documentation, GRCC explained:
501 KAR 6:020, CPP 3.1 defines conflict of interest to mean any employee action or association which adversely affects the interest of Corrections. An employee signs an Employee Confidentiality and Security Agreement relative to CPP 3.1 in which the employee acknowledges and agrees not to disclose confidential information or records without the prior written consent of the appropriate authority within Corrections. "I understand," the agreement continues, "that accessing or releasing confidential information or records of the Department of Corrections, or causing confidential information or records of the Department of Corrections to be accessed or released, on myself, other individuals, offenders, relatives, outside the scope of my assigned job duties constitute a violation of this agreement." 4 . . . Because the Complainant occupies an official position as the designated GRCC open records coordinator and the supervisor of the offender records department, she cannot use her inside knowledge of the records of the DOC and GRCC for a personal reason in derogation of the public interest, which is the safety and security of the GRCC.
And later in its response to our request:
It is the conflict of interest inherent in the fact that this requester is the chief administrator of open records at the GRCC and the fact that, instead of sending a request to the Warden for copies of specifically identified records, [Ms. Shanklin] instead sought to seek records piecemeal from each responsible employee from her own agency, that makes this conduct threatening and disruptive.
Acknowledging that Ms. Shanklin has not engaged in any other threatening or disruptive conduct, GRCC argued: "[H]er requests for several categories of records relating to their staff persons including security staff, have made other employees fearful and distracted from their job responsibilities," and in the Warden's estimation "affected the safety and security of GRCC." 5
With reference to Ms. Shanklin's request for inmate records, GRCC asserted that although she "has access to [these records] in her official capacity, these are not records which [she] may use for personal reasons." Continuing, GRCC observed:
It is unreasonable and disruptive for [Ms. Shanklin] to require GRCC inmate security records in what is clearly a personal dispute she has with other GRCC employees. It unduly involves inmates in the personal affairs of those who have custody over them. It cannot be overemphasized that these are records which have no relation to [Ms. Shanklin] whatsoever which will compromise the security of the institution because this disclosure will have a negative impact on the morale of security personnel . . . .
So too, GRCC argued, Ms. Shanklin's request for personnel records relating to GRCC employees, and one employee in particular, demonstrates that she is "targeting her fellow employee. " 6
In sum, GRCC maintained:
[B]ecause of the disruption caused by [Ms. Shanklin's] repeated requests, fueled by staff conflict between [Ms. Shanklin] and [a fellow employee] , [Ms. Shanklin's] apparent disrespect of [an employee in Internal Affairs] , at a medium security adult male correctional facility where safety and security are top priorities, and [Ms. Shanklin's] attempts to involve more GRCC staff members and even inmates by requesting records which do not relate to her, the Attorney General is urged to affirm [GRCC's] refusal to respond to [her] January 5, 2007 open records request. This refusal was justified pursuant to KRS 61.872(6), KRS 197.025(1), KRS 61.878(1)(l), and KRS 61.878(1). No public interest would be served by this disclosure. In fact the public interest is better served by the safe and secure operation of the GRCC. The GRCC Warden clearly had reason to believe that the repeated requests of [Ms. Shanklin] were intended to disrupt other essential functions of the GRCC, because not only had [she] created a conflict between her personnel requests and her official designated position at the agency and failed to follow the Warden's directive with respect to coordination of the requests, but also the repeated requests had created a security threat to the GRCC because of the impact upon staff at several levels.
GRCC attached supporting affidavits.
We find insufficient support in the record on appeal to affirm any of the arguments advanced by GRCC in denying Ms. Shanklin's January 5, 2007, request with the exception of the argument it advances under KRS 197.025(1), and, with regard to this argument, we affirm GRCC's denial of Ms. Shanklin's request only to the extent that the facility would deny the same requests submitted by any other open records requester. We find no support in existing authority for the proposition that Ms. Shanklin forfeits her rights under the Open Records Act simply because she is the offender information supervisor at GRCC and has filed an action in the Personnel Board against GRCC. Ms. Shanklin's identity, position, and purpose in seeking access to nonexempt public records has no bearing on GRCC's or the Attorney General's obligations under the Open Records Act in responding to her request. We will not belabor this point.
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994) is dispositive of this issue. "Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request." Zink at 828.
Medley v. Board of Education, Ky. App., 168 S.W.3d 398 (2004), is distinguishable insofar as it involved a request by a teacher for records governed by the Family Educational Rights and Privacy Act, and its Kentucky counterpart, under which a specific exception existed for a teacher with a legitimate education interest in the requested record. It was for this reason, and this reason alone, that the court indicated that the requester's position was relevant. The court did not establish a blanket rule that all public employee requests for records under the Open Records Act must be assessed "in light of the public employee's position at the agency," and we will not apply such a rule. Ms. Shanklin has the same standing as any other open records requester, and her assertion of her rights under the Act does not create a conflict of interest under CPP 3.1 or a breach of the Employee Confidentiality and Security Agreement and the Memorandum of Understanding she executed. Ms. Shanklin is entitled to all nonexempt records in GRCC's custody and may use them for any lawful purpose she sees fit.
Similarly, Ms. Shanklin is entitled to all nonexempt records in GRCC's custody notwithstanding the fact that she has filed an action in the Personnel Board. GRCC's reliance on KRS 61.878(1) was misplaced and its argument that to use the Open Records Act to obtain records "subvert[s] the rules governing pre-trial discovery" was legally unsupportable. Again, we will not belabor this point.
Kentucky Lottery Corporation v. Stewart, Ky. App., 41 S.W.3d 860 (2001) is dispositive of this issue. Agreeing with those Attorney General's opinions recognizing that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation," the court quoted from OAG 89-65 in which this office opined:
Inspection of public records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under the Open Records provisions in accordance with KRS 61.880.
OAG 89-65, p. 3, cited in Stewart at 864. Consistent with holding in Stewart, and a line of open records decisions of this office, we find that GRCC improperly relied on KRS 61.878(1) 7 in denying Ms. Shanklin's January 5 request.
We also find that GRCC improperly relied on KRS 61.872(6) in denying Ms. Shanklin's request. As noted, KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
It is GRCC's position that Ms. Shanklin's "repeated requests . . . were intended to disrupt other essential functions . . . because . . . [she] created a conflict between her personal requests and her official position at the agency and failed to follow the warden's directive with respect to coordination of requests . . . ." 8 Respectfully, we disagree.
In an early open records opinion this office was asked to determine whether repeated requests submitted by an individual to a school district in a five month period constituted an intent to disrupt the district's essential functions, within the meaning of KRS 61.872(6). 9 The Attorney General concluded that they did not, opining:
Repeated requests to inspect the records of a public agency alone do not, in our opinion, amount to harassment. Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county, and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. We believe that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 77-151, p. 3. In a later decision this office reached the same conclusion with respect to fifteen requests submitted to the Transportation Cabinet by an individual in a six day period. OAG 89-79. Anticipating ten more requests, the Cabinet resisted disclosure expressing concern that the records might be used in a subsequent legal action against the Cabinet and that the number, detail, and nature of the requests suggested an intent to disrupt its essential functions. The Attorney General concluded that the Cabinet's reliance on KRS 61.872(6) was improper, expressly rejecting that part of the argument that was postulated on the use to which the records would be put. Accord, 93-ORD-72 ("numerous" requests submitted by reporter to county attorney did not amount to an intent to disrupt his office's essential functions, but suggested that the reporter was "aggressively pursuing an investigation into the County Attorney's Office's financial operations . . . ."); 94-ORD-86 (sixteen requests to school district was not indicative of an intent to disrupt district's essential functions in the absence of clear and convincing evidence to the contrary, but appeared to "reflect a commitment to monitoring the activities of the [agency] . . ."); see also, 00-ORD-72 (Board of Barbering improperly denied request based on KRS 61.872(6)); 05-ORD-067 (Louisville Water Company improperly denied request based on KRS 61.872(6)). Recognizing that "[a]lthough there is no limitation on the number of requests and subsequent appeals that an applicant may submit, there is certainly a point at which the applicant's repeated use of the law becomes an abuse of the law within the contemplation of KRS 61.872(6)," the Attorney General nevertheless concluded in each instance that the public agency had not successfully built its case. 96-ORD-193, p. 5.
We reach the same conclusion in the appeal now before us. The only distinguishing factor in the instant appeal is that the agency resisting disclosure is a correctional facility and the requester is the open records coordinator at the facility. We cannot accept the proposition that an individual knowledgeable in the law may reasonably be perceived as acting in a threatening manner, or disrupting the facility's functions, when she utilizes her knowledge of the law to obtain nonexempt records to which she is entitled under the law regardless of how she intends to use the records. It is no more reasonable, in our view, for individuals who regularly process open records requests, such as the fiscal manager or the head of internal affairs, to feel any more threatened by such requests than they would feel if the request was submitted by any other requester. Nor is it reasonable that staff morale would suffer, assuming arguendo that this represents a legitimate basis for denial under KRS 61.872(6), because nonexempt records were requested by, and released to, the records coordinator as opposed to any other requester. Surely, correctional facility employees face greater threats in their daily work activities than the receipt of an open records request or the knowledge that records related to them have been requested. Ultimately, they are subject to the same measure of public accountability through records access as any other public employee notwithstanding the identity of the requester.
The record on appeal is devoid of proof that essential facility functions were disrupted as a result of the volume of requests received, the difficulties associated with locating and retrieving the records requested, or production of the records. Similarly, the record is devoid of proof that any of Ms. Shanklin's requests were intentionally duplicative 10 or otherwise frivolous. Accordingly, we find that GRCC violated the Open Records Act in refusing to honor Ms. Shanklin's January 5 request on the basis of KRS 61.872(6).
Nevertheless, GRCC is a correctional facility and its warden is statutorily authorized to deny an open records request if she deems disclosure of the requested record(s) "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). 11 "In enacting this provision," the Attorney General has observed, "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. As we recently noted, "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." 07-ORD-049, p. 5.
In her January 5 records application, Ms. Shanklin requested copies of P1's on GRCC employees, time sheets, detention orders, and a disciplinary action. If the warden deems disclosure of any of these records to constitute a threat to security, by virtue of the content of the records as opposed to the identity of the requester or her intended lawful use of the records, those records may properly be withheld under KRS 197.025(1). We reiterate: the basis for denial under KRS 197.025(1) must be the content of the record and not the identity of the requester. The warden may properly invoke 197.025(1) as to Ms. Shanklin, and the records she requested, only if she would invoke the provision as to any other open records requester. It remains for the warden to make this determination.
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
Ron BeckDeputy Warden Green River Correctional Complex1200 River RoadP.O. Box 9300Central City, KY 42330-9300
Jeff MiddendorfGeneral CounselJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 We will not lengthen this decision with an analysis of GRCC's disposition of Ms. Shanklin's December 13 request for written directives/ receipts for flowers ordered for another employee and her alternative request to be advised "if this was a verbal directive. " GRCC was not obligated to notify Ms. Shanklin "if this was a verbal directive, " and we find no error in its refusal to do so.
2 Ms. Shanklin disputes this figure, asserting that she received only 145 copies of responsive records.
3 The record on appeal indicates that in his December 21 email to Deputy Warden Beck, Mr. Higgs advised that Ms. Shanklin "told me that it was no reflection on me but I had run out of time and she was going to file an appeal." That email further indicates that Mr. Higgs told her he "understood." The words "against me" appear only in his February 8, 2007, affidavit. We therefore fail to see how her statement was, or could have been, reasonably construed to constitute a personal threat.
4 In subsequent correspondence, GRCC provided the Attorney General with a copy of the November 16, 1994, Memorandum of Understanding regarding employment to which Ms. Shanklin affixed her signature. That document imposes a duty on her "to refrain from revealing any information of a personal nature about any individual staff member or inmate which is not a matter of public record." GRCC has not invoked KRS 61.878(1)(a), relating to records containing information of a personal nature, in support of its denial of her request and we fail to see the relevance of the Memorandum.
5 GRCC here references KRS 197.025(1), authorizing nondisclosure of records whose disclosure is deemed to constitute a threat to institutional, staff, or inmate security, but does not further elaborate.
6 In support, GRCC includes an excerpt from Ms. Shanklin's October 19, 2006, information report. Ms. Shanklin references her "history" with the employee and threats directed at Ms. Shanklin by the employee and the employee's husband, but no threats made by Ms. Shanklin against the employee.
7 KRS 61.878(1) provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery.
8 The record on appeal does not support the latter statement. Ms. Shanklin was notified on December 22 that all future requests would be "directly coordinate[d]" by Warden Webb. She logged her next request, dated January 5, presumably per CPP 6.1C.1.a., which requires the records coordinator to "date stamp and log in all requests upon receipt," then sent it to the warden. We cannot agree that this conduct constituted "dereliction of Warden Webb's order" insofar as the CPP required her to log the request.
9 Formerly codified as KRS 61.872(5).
10 Some of Ms. Shanklin's requests were originally misdirected. As a result, Ms. Shanklin submitted the same request to more than one custodian within the facility after her original request was denied.
11 This provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l) which authorizes nondisclosure of, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."