Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Marion Adjustment Center violated the Kentucky Open Records Act in denying Jerry L. Nunn's written request for a copy of the "Policy and Procedure of the gate located at the St. Mary's Unit Courtyard[,] especially pertaining to the staffs [sic] responsibility and task's [sic] that are required of them when assigned to this task [sic]. Please list tasks's [sic] and duties required of staff regarding controlled movement prior to yard opening." In a timely written response, MAC advised Mr. Nunn that he is "not authorized to obtain this information." Although MAC violated KRS 61.880(1) in failing to cite the relevant statutory exception(s) and explain how it applied, MAC acknowledged this error and satisfied its burden of proof on appeal.
Because the records being sought do not contain a "specific reference" to Mr. Nunn, the inmate requester, MAC properly denied his request on the basis of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Additionally, MAC properly relied on KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying access given that disclosure of the requested MAC policies and procedures would constitute a legitimate security threat. In our view, the analysis contained in 08-ORD-053 and 09-ORD-047 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
Pursuant to KRS 197.025(2):
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual."
(Emphasis added.) As amended in 1998, this provision authorized correctional facilities to withhold a record from an inmate unless the record "pertain[ed] to that individual." 98-ORD-150, p. 3. In 2002, however, the General Assembly further narrowed the scope of public records available to inmates by stipulating that correctional facilities and jails must disclose only those records containing "a specific reference" to the requesting inmate as MAC has correctly argued. 04-ORD-015, p. 3; 03-ORD-073, p. 3. "The net effect of [the 2002] amendment has been to further curtail the inmate's right of access to records maintained by the [Department of Corrections] and correctional facilities" under its jurisdiction. 03-ORD-073, p. 3. See also 04-ORD-015; 03-ORD-091; 03-ORD-007. To this extent, the identity of the requester is directly relevant and inmates no longer have "the same right to inspect public records as any other person" as a result of the amendments to KRS 197.025(2), at least with respect to records in the custody of facilities such as MAC. 99-ORD-161, p. 3; 04-ORD-076.
On appeal, MAC also relied upon KRS 197.025(1), pursuant to which:
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.
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 KRS 197.025(1) was enacted 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); incident reports (03-ORD-190); and videotapes of inmate visitation area (04-ORD-017). Because this appeal presents no reason to depart from these governing precedents, the Attorney General again declines to substitute his judgment for that of the facility or the Department of Corrections. As in 08-ORD-053 and 09-ORD-047, the agency's denial must be affirmed on the bases of both KRS 197.025(1) and (2).
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.
Jerry L. Nunn, # 201994Cole CarterAmy V. BarkerDaniel Akers