Request By:
Billy L. Barnett, Jr., # 119014Dennis Yeager, I/A
Kentucky State Penitentiary
P.O. Box 5128
Eddyville, KY 42038-5128Emily Dennis
Office of Legal Services
Justice and Public Safety Cabinet
125 Holmes Street, 2nd Floor
Frankfort, KY 40601
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 Kentucky State Penitentiary properly relied on KRS 197.025(1) in denying Billy L. Barnett's October 10, 2007, request for one copy of "each of the unsigned letters which ended up in the possession of Internal Affairs at the Kentucky State Penitentiary for which [he] received a disciplinary report in the month of August 2007, as well as one copy of each envelope said letters arrived in [sic]." KRS 197.025(1) provides that "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." Mr. Barnett is an inmate confined at KSP who acknowledges having authored and sent at least one letter to a female KSP employee, and who was placed in disciplinary segregation for this act. For the reasons that follow, we find that KSP's reliance on KRS 197.025(1) suggests an expansive construction of that provision that is not entirely supported by its express language, but affirm its denial of Mr. Barnett's request notwithstanding the paucity of specific evidence supporting its claim that disclosure of the letter(s) would constitute a threat to institutional security.
KSP's October 16 denial of Mr. Barnett's request recited the language of KRS 197.025(1) but was entirely devoid of any explanation as to how it applied to the records withheld. Mr. Barnett thereafter initiated this appeal to the Attorney General questioning the sufficiency of KSP's response under the rule announced in Edmondson v. Alig, 926 S.W.2d 856 (Ky. App. 1998). 1 He explained that the disciplinary report he received stated that he mailed several unsigned letters to a female employee in August 2007, but that he was shown only one of the letters at his adjustment committee hearing and therefore deprived of his right to a meaningful defense. In subsequent correspondence, he indicated that he intended to use the letters in a petition for declaratory judgment "concerning due process violation in the disciplinary report and adjustment hearing," and that he had "no intentions of sharing them with another inmate . . . ." 2
In supplemental correspondence directed to this office following commencement of Mr. Barnett's appeal, KSP elaborated on its position. In its factual narrative of events giving rise to his request and subsequent appeal, KSP indicated that "[a]t a prison disciplinary hearing held on August 12, 2007, [Mr. Barnett] pled guilty to the charge [of sending a female KSP employee unsigned letters], thereby admitting that he was attempting to start a relationship with a member of the security staff, " but argued for the first time that because the letters were not signed, they "do not even contain a specific reference to [Mr. Barnett] and should not be subject to disclosure to him under KRS 197.025(2)." 3 In support of its position that KRS 197.025(1) authorized nondisclosure of the requested records to Mr. Barnett based on the threat to institutional security, KSP argued:
[I]f Mr. Barnett were permitted to receive copies of these letters under the open records act, they could become the source of inmate gossip in the institution and eventually make the Penitentiary an impossible place for this female employee to work.
By letter dated November 11, Mr. Barnett refuted KSP's position asserting that it represented "no more reason for the denial than that originally provided . . . ." Continuing, he observed:
If gossip about female employees at institutions w/in the Ky. Dept. of Corrections constitutes a security risk then every institution w/in the Dept. of Corrections should be under lockdown. Gossip and/or rumors about females corrections employees is perhaps more common than anything else in the penitentiary environment, it's an daily occurrence. There is not one female employed at any correctional institution, including the one the letters were written to, that hasn't been the subject of gossip and/or rumors at some point of another. The incident herein has been the subject of gossip since August 21, 2007, which was the date I was place in segregation under investigation into the matter. The fact that I'd written to the female employee and the name of the female employee are both widely known w/in the confines of K.S.P. and have been since the above stated date, just as the names of females are known in every instance of an inmate pursuing a relationship w/ one. If preventing gossip about the female I wrote is the concern, the security risk, it far too late to worry about it now. (Sic.)
In light of these observations, on November 14 the Attorney General requested additional documentation from KSP to substantiate its position pursuant to KRS 61.880(2)(c). Specifically, we asked that KSP "describe with reasonable particularity how inmate gossip poses a threat to this female employee's security."
In its November 21 response, KSP offered the following information:
The letters to the female employee written by Mr. Barnett was prohibited correspondence under 501 KAR 6:020, Corrections Policy & Procedure (CPP) 16.2. The envelope and letters do not contain the name and full return address of inmate Barnett. See CPP 16.2, II.A.2.a. This in and of itself makes the letters and envelopes exempt from disclosure to Mr. Barnett pursuant to KRS 61.878(1)(l) and KRS 197.025(2). 4 Furthermore, the letters contained information that, if communicated, would create a threat to the security of the institution. See CPP 16.2, II.H.7. The letters were intercepted by KSP Internal Affairs because it was clear from the content of the letters that inmate Barnett was "pursuing a relationship unrelated to correctional activity." In at least one letter, Mr. Barnett addresses the officer as "Dearest". This is the letter signed by "Far Away." The other unsigned letters speak of the letter writer losing sleep and thinking of the addressee all the time. These romantic letters to a female correctional employee are not authorized for retention or receipt by the inmate and as such constitute contraband within the Penitentiary. CPP 9.6, II.B.3. Employees are also prohibited from becoming romantically involved with an offender. CPP 3.1, II.B.3.d. In a maximum security prison, inmate gossip about female correctional officers may be a daily occurrence. However, to allow inmates to possess letters in which their romantic feelings about a particular officer are put into words, and an attempt made to send the letter to the officer through unauthorized means, would be paramount to condoning this activity. The Penitentiary is a maximum security institution where inmate assaults to female correctional employees do occur. Therefore, every step must be taken to ensure the safety of these employees.
Having reviewed the referenced policies and considered this additional information, we find that although the issue on appeal is a very close one KSP cannot be said to have violated the Open Records Act in denying Mr. Barnett's request.
As noted, KRS 197.025(1) 5 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-ORD190); 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); investigative file relating to corrections employee (07-ORD-049). Here, as in the referenced decision, 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 . . . must . . . eclipse the public's right to know." 07-ORD-049, p. 5.
KSP advises that Corrections Policy and Procedure (CPP) 3.1, II.B.3.d. prohibits employees from "[d]eveloping a relationship . . . [with] an offender other than that necessary in the normal conduct of business" and expressly proscribes romantic involvement with offenders. Mr. Barnett's written overtures to the employee, in this regard, placed the employee in a compromising position vis-a-vis her employer, when they were intercepted, and the inmate population, generally, when they become the subject of pervasive "gossip. " KSP emphasizes that extraordinary measures are taken in maximum security facilities to insure the safety of female correctional employees and minimize the risk of inmate assaults. This measure is clearly among them. The letters in which Mr. Barnett transmitted his feelings could therefore reasonably be characterized as mail that "would create a threat to the security of the institution" within the meaning of "prohibited mail" found at CPP 16.2, II.H.7. As such, they can properly be classified as contraband as defined at CPP 9.6, II.B.3 insofar as they are "not authorized for retention or receipt by the inmate . . . ." Disclosure of the love letters composed by Mr. Barnett does not represent the threat to institutional security that disclosure of, for example, conflict sheets documenting disputes among inmates, daily rosters and time and attendance reports for corrections officers, or personnel records of those officers represents, but we are not prepared to say that the warden or his designee abused their discretion in denying Mr. Barnett's request. As the Kentucky Court of Appeals noted, in a case dealing with prison contraband, "[The prison] environment has its own peculiar problems, in that the insignificant and unremarkable can, and do, become magnified in importance." Commonwealth v. O'Hara, 793 S.W.2d 840, 843 (Ky. App. 1990). While we may question the exercise of discretion in this case, we decline Mr. Barnett's suggestion that we substitute our judgment for that of the warden or his designee. 6
Accordingly, we find that KSP's reliance on KRS 197.025(1), incorporated into the Open Records Act by KRS 61.878(1)(l), was not entirely misplaced and affirm its denial of Mr. Barnett's request. We trust that should he elect to pursue his declaratory judgment action in the courts, other legal mechanisms are available to him to obtain copies of the records sought.
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 By letter dated November 10, 2007, Mr. Barnett submitted a second complaint concerning KSP. He explained that on October 29, he tendered a request to inspect , rather than obtain copies of, the records identified in his earlier request. This office has long recognized that the right to obtain copies is correlative to the right to inspect those records. OAG 89-27; OAG 92-20; 94-ORD-47; 98-ORD-8; 07-ORD-210; 05-ORD-201. Resolution of questions concerning the right to obtain copies of public records, perforce, constitutes resolution of questions concerning the right to inspect those records. Accordingly, we treat these issues as one and the same.
2 Mr. Barnett acknowledges that the Attorney General is not authorized to adjudicate issues concerning due process rights before an adjustment committee, noting that he provided this information to us "for the specific purpose of showing why [he] need[ed] copies of the letters and envelopes. " However, his purpose in requesting records is inapposite. As this office recently reminded another correctional facility:
[An open records requester's] identity, position, and purpose in seeking access to nonexempt public records has no bearing on [the correctional facility's] or the Attorney General's obligations under the Open Records Act in responding to [a] request [or appeal]. We will not belabor this point. Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 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."
07-ORD-057, p. 6. Nevertheless, we continued:
If the warden deems disclosure of any [requested records] to constitute a threat to security, by virtue of the content of the records as opposed to the identity of the requester or [his 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.
Id. at 10. Thus, if the letters Mr. Barnett requests in support of his declaratory judgment action are made available to him, they must be made available to any other requester under a standard open records analysis, and barring any other KRS 197.025 considerations. The fact that his intended use of the records may be a "lawful" one, and that he does not intend to share them with other inmates, is therefore, as noted, inapposite.
3 We find this argument unpersuasive. If the evidence that Mr. Barnett authored the letter that was presented to the adjustment committee was sufficiently convincing to warrant the imposition of disciplinary measures in the form of a 45 day assignment in the segregation unit, we must assume his authorship was conclusively established. As in 04-ORD-086, we find that although the records may not contain a "'specific reference' to Mr. [Barnett] within the contemplation of KRS 197.025(2) . . ., the purpose underlying KRS 197.025(2) is [not] served by nondisclosure of the requested record[s], especially in light of the fact that Mr. [Barnett] is familiar with the record[s'] content." Here, as in 04-ORD-086, "we urge the Department [of Corrections] to review its position relative to KRS 197.025(2) to insure that no inmate is denied access to a record based on a narrowing legalistic interpretation of that statute." Id. at 3.
4 See note 3, above, rejecting this argument.
5 KRS 197.025(1) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l) which 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.
6 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.