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 the Kentucky Correctional Institution for Women violated the Open Records Act in the disposition of Chris Henson's June 11, 2007, request for copies of all records in Michelle Ann Price's (Christofield's) inmate file and for a narrative response to his question concerning the number of inmates housed in the facility at the time of his request. For the reasons that follow, we affirm KCIW's denial of Mr. Henson's request on the basis of KRS 197.025(1), but find that the facility improperly directed him to resubmit his request to Offender Information Services, Department of Corrections, since the facility is managed by the Department of Corrections, is not a separate public agency, and maintains records responsive to Mr. Henson's request.
By letter dated June 21, 2007, KCIW Offender Information Supervisor Cheri Mattingly notified Mr. Henson that Ms. Price (Christofield) "was discharged from custody while in the community service program at Dismas House in Owensboro." Continuing, Ms. Mattingly observed:
[Ms. Price's (Christofield's)] institutional file would be maintained in Central Office. You can write to them to request this information. You may send your request to:
Offender Information
Dept. of Corrections
P.O. Box 2400
Frankfort, KY 40602-2400
In response to Mr. Henson's question concerning KCIW's current inmate population, Ms. Mattingly advised, "we have 691 inmates at this facility." Her response apparently crossed Mr. Henson's appeal in the mail. 1
In supplemental correspondence directed to this office following commencement of Mr. Henson's appeal, KCIW amplified on its position. Anticipating the resubmission of his request to Offender Information Services, KCIW asserted that Mr. Henson's and Ms. Price's (Christofield's) past contacts 2 support invocation of KRS 197.025(1), incorporated into the Open Records Act by KRS 61.878(1)(l). As is our standard practice in such cases, we defer to the Department's invocation of this provision. Nevertheless, we are obliged to point out certain procedural irregularities in KCIW's response.
To begin, we question KCIW's implicit reliance on KRS 61.872(4) in referring Mr. Henson to Offender Information Services, Department of Corrections, to fulfill his request. That statute provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Assuming, arguendo, that the requested records did not reside at KCIW we believe it was incumbent on Ms. Mattingly to immediately forward Mr. Henson's request to Offender Information Services, rather than delay access to the records by requiring him to resubmit the same request to Offender Information Services. As noted, the Department of Corrections is statutorily charged with the duty to "exercise all functions of the state in relation to . . . [m]anagement of penal, reform, and correctional institutions," including KCIW. KRS 196.030(1)(a). KCIW is not a separate public agency but is, instead, a division within the Department. KRS 196.026. If, in fact, KCIW did not maintain records responsive to Mr. Henson's request, the statutorily appropriate response, in our view, was to transmit his request to Offender Information. The net effect of the practice employed by KCIW is, as noted, to delay public access and drive up the costs to the public associated with the exercise of the rights granted by the Open Records Act.
In the instant appeal, however, we do not believe it was necessary for KCIW to forward Mr. Henson's request to Offender Information Services, or to direct him to resubmit his request to Offender Information Services. Mr. Henson requested records that reside in KCIW's custody, namely, Ms. Price's (Christofield's) inmate records. A review of the Records Retention Schedule for the Department of Corrections, pertinent portions of which are enclosed along with the accompanying "Description and Analyses," indicates that although "the most complete record of inmates who have served time in the penal system in Kentucky" is the Offender Record - Master File, Series No. 02982, maintained by Offender Records Services, KCIW maintains Ms. Price's (Christofield's) institutional inmate file, Series 03016. 3 And although the retention period for the institutional inmate file is briefer, "five years after case closure" versus "seventy-five years after case closure" Mr. Henson states that Ms. Price (Christofield) was "recently released" and KCIW does not dispute this statement. Finally, the disposition instructions for the institutional inmate file direct KCIW to retain the file at the agency, and do not direct the transfer of the file to Offender Records Services or anywhere else. Absent proof to the contrary, Ms. Price's (Christofield's) inmate file, containing a broad range of records responsive to Mr. Henson's request, as framed, is maintained at KCIW, and KCIW therefore improperly instructed Mr. Henson to submit his request to Offender Information Services in Frankfort.
Having remarked on these irregularities in KCIW's disposition of Mr. Henson's request, we nevertheless affirm the denial of that request on the basis of KRS 197.025(1). KCIW invoked this provision in anticipation of Mr. Henson's resubmission of his request to Offender Information Services. We analyze the propriety of its invocation in relation to his current request to KCIW in light of the observations set forth above. KRS 197.025(1), incorporated into the Open Records Act by KRS 61.878(1)(l), 4 provides:
KRS 61.870 to 61.884 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 KRS 197.025(1), 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. Accord, 96-ORD-209; 04-ORD-017; 05-ORD-228. Application of this provision is not limited by its terms to inmate access to otherwise nonexempt records, nor is it limited by its terms to threats to the security of inmates, correctional staff, or the institution. Instead, it extends by its terms to threats to the security of "any other person." KRS 197.025(1) thus permits KCIW to deny any person access to records the disclosure of which is deemed by the commissioner or his designee to constitute a threat to the security "of any other person." (Emphasis added.)
In construing the expansive language of this provision, 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. 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).
As noted above, the Attorney General has generally refused to substitute his judgment for that of the commissioner or his designee in determining that disclosure of records constitutes a threat to security within the meaning of KRS 197.025(1), and we will not do so here. KCIW submits documentation in support of its position that Mr. Henson's and Ms. Price's (Christofield's) past contacts warrant invocation of KRS 197.025(1). Contrary to Mr. Henson's belief, and understandable discomfiture, KCIW did not submit these records maliciously or gratuitously, but as an integral part of the argument that disclosure of the requested records constitutes a threat to another person. We are not prepared to second guess its position in this regard, and therefore affirm its denial of Mr. Henson's request on the basis of KRS 197.025(1) and KRS 61.878(1)(l).
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.
Chris Henson
Cheri MattinglyInstitution CoordinatorKentucky Correctional Institution for Women3000 Ash AvenuePewee Valley, KY 40056
Emily DennisJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 Mr. Henson questions the timeliness of this response. Indeed Mr. Henson's June 22 appeal was prompted by KCIW's alleged failure to respond to his June 11 request. KCIW counters that his request did not arrive until June 14, 2007, and KCIW provides us with a date-stamped copy of the request. A three day mail delay is not unusual, and we have no reason to doubt KCIW's statements relative to the date on which Mr. Henson's request was received. Mr. Henson offers no proof of resubmission of the same request on June 18, 2007, and we are therefore foreclosed from considering any issues that might otherwise arise.
Mr. Henson also questions KCIW's legal authority to issue responses to open records requests five business days after their receipt. Express legal authority for this extended deadline exists at KRS 197.025(7) which provides:
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for a record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released.
Assuming Mr. Henson's request reached KCIW on June 14, and excluding the intervening Saturday and Sunday, Ms. Mattingly's June 21 request was issued five days after receipt and was therefore timely.
2 We omit the details of that contact in the interest of mitigating the harm to the parties through further publication.
3 According to the Retention Schedule, the inmate file consists of:
Order for appearance of prisoners; detainees; physical identification forms; incident reports; pre-hearing detention forms; record of interviews; academic/vocational school diplomas received during incarceration; receipt for property and/or money; letters and correspondence not pertaining to parole; work reports; meritorious-educational good time recommendations; good time restoration forms; commitment orders; court orders; sheriff's receipt; resident record card; custody time credit; status change; notice of discharge; parole board action sheet; parole report; parole plans; employment placement verification reports; parole certificates; results of preliminary violation hearings; receipt for return of parole violators; parole violation transport authorization form; parole violation warrant; revocation of parole hearing form; notification of release of inmate; victim impact statements; persistence investigations; test scores and test material; progressive incarceration plans; progressive incarceration plan updates; academic/vocational school progress reports; classification review records; FBI Sheet; transfer recommendation and authorization forms; notice of furlough; furlough application; furlough code of conduct.
Series 03016.
4 KRS 61.878(1)(l) authorizes public agencies to withhold "[p]public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."