Request By:
Billy Noel, # 141156
Alan Brown
Amy V. Barker
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Penitentiary violated the Kentucky Open Records Act in partially denying Billy Noel's request for "one (1) copy of any Extraordinary Occur[re]nce Report (EOR) and Information Report arising from an incident involving me at Green River Correctional Complex on July 25, 2008." Having ultimately established that disclosure of the information redacted from the requested EOR would constitute a legitimate security threat, KSP properly denied access 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, including 07-ORD-039 and 03-ORD-190.
In a timely written response, Deputy Warden Alan Brown advised Mr. Noel that portions of the attached EOR had been redacted in accordance with KRS 197.025(1) and KRS 197.025(2) [mistakenly cited as (5)], as the information does not contain a specific reference to him, "and if disclosed, could result in adverse consequences and/or jeopardize the safety or security of staff, other inmates, the institution or potential and current investigations." Consistent with KRS 61.872(5), Deputy Warden Brown further noted that any responsive "Information Report" would not be retained by KSP; however, such a report "may be retained by the originating facility," that being GRCC, the address for which Deputy Warden Brown provided to Mr. Noel. 1 By letter dated October 23, 2008, Mr. Noel initiated this appeal, contending that the EOR "in fact does contain the required reference to me by name." According to Mr. Noel, the fact that his name "does not appear in each redacted sentence in no form or fashion enables the prison authorities to circumvent the spirit and/or intent of the Open Records Act. "
Upon receiving notification of Mr. Noel's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSP, initially acknowledging that Deputy Warden Brown "did inadvertently cite the wrong subsection of the statute for the specific reference exemption. " Noting that a significant portion of the document was redacted and then provided, Mr. Barker explains:
Staff at KSP has again reviewed the EOR. One paragraph referencing Mr. Noel was inadvertently redacted and is now being provided. The institution also determined that the information redacted on the first page of the report is not likely to constitute a security risk in this situation at this time. A revised copy of those pages of the EOR is being enclosed for Mr. Noel. References to the investigation and the transport preparations will still be withheld in order to prevent a security risk. Allowing Mr. Noel and potentially other inmates through him to have information about other inmates who may have been involved in the investigation of the incident may put those individuals at risk. Staff may also be put at risk if further incidents occur. Counsel has been informed that this incident led the way to further violence at GRCC which resulted in the Warden placing that institution (GRCC) on controlled movement. The EOR contains a step-by-step, timed account of the actions taken by GRCC security and medical personnel regarding an inmate other than Mr. Noel. While each individual sentence alone may not present a significant risk, the entire picture and the fact that the information redacted does not pertain to Mr. Noel, but to another inmate does present a potential risk.
Based upon the foregoing, Ms. Barker argues that KSP properly relied upon the "security risk exemption" codified at KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), as the basis for the redactions. Citing 07-ORD-039, Ms. Barker also correctly notes that this office "has affirmed the denial of a request for an extraordinary occurrence report based on KRS 197.025(1). See also 03-ORD-190." Referencing a line of prior decisions in further support of the agency's position, Ms. Barker further observes that this office "has affirmed denials pursuant to KRS 197.025(1) in various other factual situations as well." In addition, KSP redacted portions of the EOR "that only pertained to Inmate Hillman and his medical care and transport. . . . Portions concerning Inmate Hillman were also properly redacted because it is a security risk to allow an inmate to possess records pertaining to other inmates. " 2 Because the instant appeal presents no reason to depart from governing precedents, this office finds no error in the final disposition of Mr. Noel's request.
Resolution of this appeal turns on the application of KRS 197.025(1), which provides:
KRS 61.884 and 61.878 to the contrary 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 KSP has correctly observed, this provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are included among those records removed from application of KRS 61.870 to 61.884.
By enacting KRS 197.025(1), "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 03-ORD-190. 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; 03-ORD-190. Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 03-ORD-190.
Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from the public based on KRS 197.025(1) for 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). In our view, the analysis contained in 07-ORD-039, which is directly on point (affirming denial of request for EOR in its entirety), and 03-ORD-190 (affirming denial of request for incident report) is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
Here, KSP determined, in a proper exercise of its discretion, that disclosing the redacted information would pose a security threat to other inmates and KSP staff. As previously noted, the Attorney General has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 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, and the instant appeal presents no reason to depart from this approach. In sum, KSP properly relied upon KRS 197.025(1) in redacting the information at issue; no violation occurred.
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 Citing 93-ORD-134 and 99-ORD-150, KSP correctly advised Mr. Noel that "a public agency cannot afford a requester access to records that it does not have. Likewise, the agency discharges its duties under the Open Records Act by affirmatively so stating." Insofar as Mr. Noel does not challenge the disposition of his request in this respect, and the agency has discharged its duty, further discussion is unwarranted. See 07-ORD-190 and 07-ORD-188.
2 Although Ms. Barker notes that KSP "should have also asserted the personal privacy exemption (KRS 61.878(1)(a)) for portions that were redacted that concerned the medical condition and treatment for Inmate Hillman[,]" a valid argument, further discussion is unnecessary given our conclusion relative to KSP's reliance on KRS 197.025(1).