Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northpoint Training Center violated the Kentucky Open Records Act in denying inmate Bobby Hoskins' written request for "any and all reports to include but not limited to NTC information reports, extraordinary occurance [sic] reports, all documents that have the name Bobby Hoskins # 203191 concerning the August 21, 2009 [r]iot." In a timely written response(s), Andrea M. Windsor, Offender Information Services, denied Mr. Hoskins' request on the bases of KRS 61.878(1)(h), KRS 197.025(2) , and KRS 197.025(1). Mr. Hoskins initiated this appeal by letter dated December 17, 2009. Upon receiving notification of Mr. Hoskins' appeal from this office, Jonathan S. Milby, Staff Attorney, Justice and Public Safety Cabinet, elaborated upon each of the arguments initially made by NTC. Because this office finds the position of NTC relative to KRS 197.025(1), as explained on appeal, persuasive, consideration of the remaining arguments made by NTC is unnecessary. In accordance with 07-ORD-039 and 10-ORD-005, the denial is affirmed.
In relevant part, Mr. Milby argued the following in support of the agency's position:
[KRS 197.025(1)] permits denial of access to records by inmates where such access could, in the discretion of the Commissioner, cause a potential security threat to persons or institutions. In light of the subject matter involved in the records requested, a riot at a DOC institution, it is easy to conceive how the release of preliminary information regarding those events could destabilize other institutions and cause inmates to disrupt operations and possibly injure staff or other inmates. Accordingly, the exception to the Open Records Act contained in KRS 197.025(1) is appropriately invoked in this case. The Attorney General has on prior occasions recognized that the discretion afforded the Commissioner via KRS 197.025(1) is broad, and that the Office of the Attorney General should not "substitute its judgment for that of the correctional facility or the Department of Corrections." 08-ORD-148[,p. 4.] See also 06-ORD-026; 03-ORD-190; 00-ORD-125; 96-ORD-179. The Department has legitimate and clear reasons for withholding this information pending finality of investigative proceedings by DOC personnel and the KSP [Kentucky State Police], and the Attorney General should defer to the reasonable exercise of discretion by the DOC.
Having reviewed the relevant authorities in light of the facts presented, this office finds no error in the denial by NTC of Mr. Hoskins' request.
This office recently affirmed the denial by NTC of another inmate's request for various records, including the extraordinary occurrence report(s) concerning the incident on August 21, 2009, pursuant to KRS 197.025(1). 10-ORD-005. In our view, the reasoning found at pp. 6-7 of that decision and pp. 3-4 of 07-ORD-039, upon which 10-ORD-005 was partially based, is controlling; a copy of each decision is attached hereto and incorporated by reference. When asked to apply the expansive language of this provision, the Attorney General 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 KRS 197.025(1) "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 affirmed denials by correctional facilities of requests for various kinds of records on that basis. See, for example, OAG 91-136; OAG 92-25; 92-ORD-1314; 94-ORD-40; 96-ORD-179; 96-ORD-182; 96-ORD-204; 96-ORD-222; 96-ORD-243; 97-ORD-25; 97-ORD-33.
In a reasonable exercise of its discretion, NTC/DOC determined that disclosure of the requested EOR and the other documents in dispute would constitute a legitimate security threat. 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. This office has consistently declined to substitute its judgment for that of the correctional facility or the Department of Corrections; no basis for departing from this approach exists on the facts presented. NTC properly relied upon KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Mr. Hoskins' request.
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.
Bobby Hoskins, # 203191Andrea WindsorJonathan S. Milby