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 Clifton D. Boards' December 17, 2009, request for a copy of "[t]he Extraordinary Occur[r]ence Report of the August 21, 2009 [r]iot at the Northpoint Training Center[,] and the "Incident/[O]ccur[r]ence Reports submitted by Officer J. Cabrera and Officer T. Long and Lt. J. Phillips recording" his involvement in the riot. By letter dated January 7, 2010, Loretta B. New, NTC Offender Information Services, denied Mr. Boards' request on the bases of KRS 61.878(1)(h), KRS 197.025(2) and KRS 197.025(1); however, Mr. Derkson had already initiated this appeal in a letter dated January 5, 2010, asserting that NTC had failed to respond within five business days per KRS 197.025(7). Upon receiving notification of Mr. Boards' appeal from this office, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of NTC, initially explaining that his request was not actually received until January 7, 2010, as indicated on the date stamped copy attached to her written response. Although the Attorney General is unable to conclusively resolve this factual issue, the documentary evidence supports the agency's position and the record on appeal presents no basis to question its veracity; accordingly, this office has no basis upon which to find a violation. Because the position of NTC relative to KRS 197.025(1), as elaborated upon by Ms. Barker, is persuasive in our view, consideration of the remaining arguments raised on behalf of NTC is unnecessary. In accordance with 07-ORD-039 and 10-ORD-005, the denial is affirmed.
In relevant part, Ms. Barker 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. The requested reports contain details concerning the occurrences of that night including detailed actions of staff and the actions of many inmates. 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 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 10-ORD-005; 10-ORD-008; 06-ORD-026; 03-ORD-190; 00-ORD-125; 96-ORD-179. The Department has legitimate reasons for withholding this information 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. Boards' 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; see also 10-ORD-008. 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. Boards' 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.
Clifton D. Boards, # 189339Jennifer MaryeAmy V. BarkerLoretta B. New