Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lee Adjustment Center ("LAC") violated the Open Records Act in the disposition of inmate Gary Dowe's January 29, 2009, request for copies of "[a]ll incident reports/staff statements, e[tc]. re[g]arding the incident where I found a razor blade in my food. " For the reasons that follow, we find that the LAC's response was in compliance with the Act.
On January 30, 2009, the LAC responded with a memorandum from Betty Shepherd, Records Clerk, stating the following:
This is sent in response to your above- referenced open records request for copies of all incident reports and staff statement regarding the incident where you found a razor blade in your food. Your case/ request is denied per K[RS] 197.025
KRS 197.025 [a]llows CCA/LAC to withhold institutional records that constitute a threat to the security of the institution. Individual witness statements contain sensitive information relating to the internal security of the institution. These statements are treated as confidential restricted information.
Mr. Dowe initiated an open records appeal on February 3, 2009, stating in pertinent part:
The records sought relate to me personally and their release is to be to me personally. It defies commonsense and logic that anything about the records could in any way compromise let alone threaten the safety and security at LAC: While eating dinner in the LAC chow hall I ate a bite of dressing/ stuffing that cut my lip. It was discovered that a piece of razorblade was in the dressing/ stuffing.
The records sought cannot be said to contain any information that could even be remotely said to be used say in an attempt to escape, to damage property or harm other inmates or staff. Having the records cannot even remotely be said to threaten the institution in any manner.
The response to Mr. Dowe's appeal was submitted by Cole Carter, Assistant General Counsel, Corrections Corporation of America ("CCA") Operations, on behalf of the LAC. The response quotes Mr. Dowe's remarks above and responds as follows:
Such a statement underestimates both the quantity and quality of risks that accompany the management of correctional facilities. More troublingly, it attempts to narrow the application of the security threat exemption in ways that would hinder correctional administrators and endanger correction and detention environments throughout the Commonwealth.
There are obvious reasons why a report about a dangerous foreign object found in food would pose a security threat if released to the inmate population. Obviously, the public release of the report would confirm that weapon ready contraband was determined to be present in the institution, and its presence was unknown before it was discovered by an inmate. Such a discovery would reveal apparent weaknesses in facility security which might be exploited if that discovery became common knowledge. Inmate Dowe asserts that he discovered a "razor blade" in his food. A razor blade is a dangerous instrument in a prison, an instrument easily fashioned into a weapon. If such a report exists, one can easily understand why LAC custodians would resist its release.
More importantly, a second, less obvious reason for withholding such a report merits further discussion. If a foreign object of any kind is found in food, consumers of that food are likely to develop concerns and doubts about the quality and safety of all food originating from that source. In the free world, such stories dominate the news, but in the free world, consumers have hundreds if not thousands of choices as to where they will get their food and what they will eat.
In LAC, and most correctional and detention facilities, there is only one kitchen. That kitchen must prepare and serve food to hundreds of inmates three times each day. If the inmates in that institution become concerned about the quality and safety of their food, the safety and security of the entire institution is endangered.
One needs only to review news accounts of serious incidents in prisons and jails to learn that a lack of confidence in the facility food supply is often a trigger for violent uprisings?
If the documents requested exist, and if they are treated as nonexempt public records, concerns about the food delivery system of the prison will spread throughout the facility. LAC custodians rightly feared that inmates will distrust the food delivery system. Such distrust leads to serious security threats. In this case, even the acknowledg[ment] of the documents' existence would create distrust in the food service system. Hence, partial or redacted disclosure is not a workable option.
In summary, Mr. Carter states, "a report of this nature, if it exists, will create a serious threat to the institution, its employees, and its residents if disclosed."
KRS 197.025(1), the subsection relied upon by the LAC, provides as follows:
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.
This subsection affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security." 96-ORD-179. The same discretion is extended to the LAC. See 05-ORD-041 (citing 04-ORD-017).
In 08-ORD-251, in a passage referenced by the LAC, we listed some of the types of documents to which this statute has been applied by the Attorney General:
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). [See also] 07-ORD-039 ? (affirming denial of request for EOR in its entirety)[;] 03-ORD-190 (affirming denial of request for incident report).
In this context, we see no meaningful distinction between the records requested here and facility canteen records which could be used "to instigate conflicts with other inmates [and] staff, as well as between staff and inmates" (97-ORD-25); deficiency reports having "the potential to undermine staff authority, compromise effectiveness and/or place the name[d] individual in risk of retribution or physical harm" (96-ORD-222); extraordinary occurrence reports (07-ORD-039); or other incident reports which could "become the basis for retaliation" (03-ORD-190). Since the records requested by Mr. Dowe could be deemed to pose security risks, the broad discretion of the facility under KRS 197.025(1) applies and we decline to substitute our judgment. The LAC's response was a proper exercise of the facility's discretion and therefore was in accordance with the Open Records Act.
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 proceedings.