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 Department of Corrections violated the Open Records Act in partially denying Helen Smith's February 25, 2009, request for copies of all records pertaining to former inmate Michelle Ann Price (Christofield) between 1994 and 2009. For the reasons that follow, we affirm the Department's partial denial of the request.
In 2002, Chris Henson, an individual who was then confined in the Kenton County Detention Center, requested information from the facility regarding persons incarcerated there. After the Kenton County Detention Center denied Mr. Henson's request due to security concerns, it received an identical request from one Helen Henson, whose home address was the same as Chris Henson's. The facility denied Helen Henson's request, citing the same security concerns and the evident connection between the two individuals. The Attorney General affirmed the denial, reasoning that "objective indicia exist[ed] to establish an identity of purpose between Chris Henson ? and Helen Henson, and it defie[d] logic to require that the record to which he was denied access on the basis of KRS 197.025(2) be released to her." 02-ORD-82 (copy attached) , p. 3.
In 2006, Helen Henson appealed a denial of records by the Covington Police Department. At that time, this office noted again that objective indicia existed to establish an identity of purpose between Helen Henson and "her son, Chris," and alluded to a "series of open records submitted by Helen and Chris Henson over a period of years dating back to 2001." 06-ORD-159, p. 6.
In 2007, Chris Henson appealed a denial by the Kentucky Correctional Institution for Women ("KCIW") of his request for the complete inmate file of former inmate Michelle Ann Price (Christofield). We upheld KCIW's denial after receiving documentation of past contacts between Mr. Henson and Ms. Price (Christofield) supporting the argument that the release of the records, in the judgment of the Department of Corrections, constituted a threat to her security within the meaning of KRS 197.025(1). 07-ORD-157 (copy attached) .
On March 2, 2009, the Department of Corrections received a request from Helen Smith for "copies of all the records that are non-exempt that pertains to former inmate: Michelle Price, a.k.a. Michelle Christofield." The Department responded on March 9, 2009, by letter from Offender Information Specialist Krystal Downey, that the records were being retrieved from storage and a final response would be mailed by March 16, 2009. This office received the present appeal from Helen Smith on April 6, 2009, which stated that no further communications had been received from the Department.
The Department's response to this appeal was received April 13, 2009, from Staff Attorney Leigh K. Meredith. She stated that according to Ms. Downey, Helen Smith's request and the final response had been "accidentally misplaced during an office move," but that after receipt of the appeal Ms. Downey apologetically sent Ms. Smith free copies of the records requested, excepting certain documents which the Department claimed were subject to exemptions under KRS 61.878(1)(a), (i), (j), (k), and (l).
On April 14, 2009, this office requested that the Department provide copies of some of the withheld documents. It was only after receiving this request that Ms. Meredith, while personally reviewing the withheld records, discovered the Department's earlier correspondence to Chris Henson concerning his request for the same records on Michelle Price (Christofield), in which Chris Henson's home address was the same one given in this instance by Helen Smith. Ms. Meredith therefore replied on April 28, 2009:
The DOC noted in its original letter to Mr. Henson that the DOC had determined that he "was formerly on active supervision by the Department of Corrections, Division of Probation & Parole as result of case # 98-CR-00461." The DOC further noted as the basis for its denial that Mr. Henson was found guilty of various crimes perpetrated against Ms. Price's son, James Henson. The DOC finally noted in its denial letter that Mr. Henson had a court order in effect at the time of the previous request ordering "no contact" with inmate Michelle Price. ?
? The likelihood is slim that this is merely a great coincidence that two requests for the same inmate's records were sent out from the same address under two different names. It appears Mr. Henson may now be able to access the requested records from Ms. Smith at the same address. Had the undersigned counsel been aware that the current request came from the same address as Mr. Henson's previous request, the entire open records request would have been denied under KRS 197.025(1) since the DOC has already established a threat to the safety and security of Ms. Price by Mr. Henson and the significance of the previous "no contact" order addressed to Mr. Henson.
Having reviewed past correspondence from Chris Henson and his mother Helen Henson, and noting the similarities including the address, we believe it is substantially likely that Helen Henson is now using the name Helen Smith. In light of our previous opinions, we therefore believe that objective indicia exist to establish an identity of purpose between Chris Henson and Helen Smith.
KRS 197.025(1) 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. 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; see also 04-ORD-017, p. 5; 96-ORD-204, p. 2. 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 in light of the Department's response we follow our determination in 07-ORD-157 that records on Michelle Price (Christofield) need not be provided to Chris Henson or, by extension, to persons manifesting an identity of purpose with Mr. Henson.
It is true that the Department has already provided the majority of the requested records to Helen Smith. Nonetheless, since the Department was unaware at the time that it was indirectly releasing records to Chris Henson, we see no reason to compound the error by questioning its invocation of KRS 197.025(1) now merely because it failed to make the connection. Accordingly, we do not address the specific exemptions claimed by the Department for the withheld documents under KRS 61.878(1)(a), (i), (j), (k), and (l), as the entire file might have properly been withheld under KRS 197.025(1). We therefore affirm the Department's partial denial of Helen Smith's request on that basis. The Department's failure to provide a timely final response to Ms. Smith's request, however, was a procedural violation of KRS 61.872(5), albeit unintentional.
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.
Helen SmithKrystal DowneyAmy V. Barker, Esq.