Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Luther Luckett Correctional Complex violated the Kentucky Open Records Act in denying Uriah M. Pasha's request for a copy of the "Baptist Hospital Northeast Duty Watch Log maintained on Uriah Pasha # 92028 May 17, 2008 thru May 19, 2008 which shows what dates and times Nurse Maria Potts, R.N., entered the room and what time [] C/O J. Smith and C/O J. Jesse relieve C/O Lemasters and C/O Leong May 17, 2008 to May 18, 2008." Having ultimately established that disclosure of the requested Duty Watch Logs would constitute a threat to the "security of the ward and the safety of individual employees" named in the request, GRCC properly denied Mr. Pasha's request on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). To hold otherwise would contravene governing precedents.
In a timely written response, Mary Hentges, Administrative Specialist II/LLCC Open Records/Procedures, denied Mr. Pasha's request, advising that the Department of Corrections "makes decisions concerning security risks under authority of KRS 197.025 and KRS 61.878(1)(l). See 99-ORD-47." According to Ms. Hentges, the DOC has determined that disclosure of the records being sought "would constitute a threat to the security of other inmates, the institution or institutional staff, and cannot be provided." By letter dated June 18, 2008, Mr. Pasha initiated this appeal from the denial of his request. Although LLCC initially failed to cite the subsection of KRS 197.025 being relied upon, namely subsection (1), the agency's position is otherwise consistent with prior decisions of this office.
Upon receiving notification of Mr. Pasha's appeal from this office, Leigh K. Meredith, DOC Staff Attorney, responded on behalf of LLCC. Quoting the language of KRS 197.025(1), Ms. Meredith elaborates upon the agency's position as follows:
The LLCC Warden has determined that disclosure of the Duty Watch Logs at Baptist Hospital Northeast's Security Ward constitute[s] a threat to security of the ward and the safety of individual employees listed in the open records request. Although Mr. Pasha argues that these records denote dates and times that occurred in the past, LLCC has determined that the disclosure of these records could enable the requester to determine patterns of security staffing over a period of several days as well to track the movements of individual staff members. The Duty Watch Logs include security shift changes, observations made by staff during the shifts, the approximate times the security ward doors would be unlocked for entry/exit by staff, and could make the hospital security ward vulnerable to outside attack, escape attempt or hostage taking. The Duty Watch Logs are maintained for use by the Dept. of Corrections only. The Attorney General's Office has consistently recognized that KRS 197.025(1) vests the DOC [C]ommissioner or his designee with broad discretion in making this determination. 07-ORD-168.
Based upon the foregoing, Ms. Meredith asserts that LLCC's denial of Mr. Pasha's request should be upheld in accordance with KRS 197.025(1).
In addressing Mr. Pasha's claim that he needs the Duty Watch Logs "to show the dates/times of shift changes at Baptist Hospital Northeast Security Ward for an unknown legal action to clear his name," Ms. Meredith correctly asserts that both Mr. Pasha's request and his appeal "specifically request to review the duty watch logs to determine the times/dates/movements of staff, not to review records pertaining to his own presence at Baptist Hospital Northeast." Citing KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), Ms. Meredith notes that the DOC "is not required to comply with a request for any record from any inmate confined in any facility unless the request is for a record that contains a specific reference to that individual." Citing a line of prior decisions in support of her position, Ms. Meredith contends that the records are protected under KRS 197.025(2) as well as KRS 197.025(1). Because governing precedents validate the agency's position relative to KRS 197.025(1), consideration of this alternative basis for denial is unnecessary. 1
In our view, the analysis contained in 06-ORD-026 and 05-ORD-228 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. Pursuant to KRS 197.025(1):
KRS 61.884 and 61.878 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, 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.
As correctly observed by Ms. Meredith, this provision is incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), which excludes from application of the Act "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
In a line of prior decisions, the Attorney General 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. Accordingly, this office has declined to substitute its judgment for that of the correctional facility or the Department of Corrections. Because the instant appeal presents no reason to depart from this approach, the same result necessarily follows; the denial by LLCC is affirmed.
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.
Uriah M. Pasha, # 92088Mary HentgesLeigh K. Meredith
Footnotes
Footnotes
1 Although Mr. Pasha again disputes the applicability of both KRS 197.025(1) and 197.025(2) in a subsequent reply, his arguments are not persuasive on the facts presented.
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