Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in denying employee Brenda Lewis' December 21, 2009, request for "[c]opies of 8-4 Shift Captain's Office duty rosters beginning December 6 thru December 12, 2009." By letter dated December 30, 2009, Linda May, Human Resource Administrator, advised Ms. Lewis that "[t]he Captain[']s Office Duty Roster is an internal memorandum prepared by the shift supervisor for the Deputy Warden of Security and Senior Captain." Citing KRS 197.025(1) and KRS 61.878(1)(l) , she denied the request "for security reasons." More specifically, Ms. May observed that the Roster, "particularly as requested over a period of time, will show patterns of staffing, including which posts are filled as opposed to those that are periodically unmanned, and will show where the institution would be vulnerable to outside attack, escape attempt or hostage taking." Because this appeal presents no reason to depart from governing precedent, namely 04-ORD-180, upon which EKCC implicitly relied, this office affirms the denial of Ms. Lewis' request on the basis of KRS 197.025(1).
By undated letter Ms. Lewis initiated this appeal, challenging the assertion that disclosure of the records would constitute a security risk given that said records "are posted on a bulletin board in a common area by viewing for those that desire to view them." Upon receiving notification of Ms. Lewis' appeal from this office, Jonathan S. Milby, Staff Attorney, Justice and Public Safety Cabinet, elaborated upon the position of EKCC as follows:
. . . In 04-ORD-180, a [decision] regarding Daphne Hopkins, also an employee at EKCC, [the Office of the Attorney General] held that the EKCC properly exercised discretionary authority under KRS 197.025(1) in determining that disclosure of the entire staff complement as shown on a security shift roster constitutes a threat to the security of the institution.
Having reiterated the language from 04-ORD-180 quoted in the agency's original response, Mr. Milby further noted that in 06-ORD-160, this office "upheld the holding cited above in denying unredacted access to duty rosters at Northpoint Training Center to a security staff member there." In addition, he correctly observed that "the determination of what materials fall within the security threat exemption of KRS 197.025(1) is a discretionary decision by the Commissioner of the DOC and the institutional Warden, as the Commissioner's designee pursuant to KRS 197.025(1)." 1
In the agency's view, Ms. Lewis' argument that the records in dispute "are made available to employees by posting in common areas is both irrelevant and erroneous." According to Mr. Milby, "none of the documents attached to her letter of appeal is a duty roster of the type she is requesting." Even if Ms. Lewis did have access to the specified rosters, that access would not be relevant because "[a]ccess to these documents within the workplace is granted to the degree necessary to carry out institutional operations to employees who have a legitimate institutional need for the rosters in the course of their official duties." However, such access "is not intended to confer an unrestricted right of access on any employees, particularly those who have no legitimate institutional interest in the duty rosters, such as Ms. Lewis." As previously discussed, these rosters, "particularly when viewed over a continuous range of dates, pose a significant security risk to the institution, its staff, and the inmates incarcerated there." For this reason, Mr. Milby explained, the duty rosters "are not posted in any location for consecutive dates in such a fashion." Based upon the foregoing, this office finds Ms. Lewis' argument unpersuasive; further discussion is unwarranted in the absence of any evidence to refute this explanation.
Resolution of this appeal turns on the application of 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.
This provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are included among those records removed from application of KRS 61.870 to 61.884.
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.
Both initially and in response to Ms. Lewis' appeal, EKCC explained that disclosure of the daily rosters for the security staff, "particularly as requested over a period of time, would show patterns of staffing, including which posts were filled as opposed to those that were periodically unmanned, and would show where the institution would be vulnerable to outside attack, escape attempt or hostage taking." 04-ORD-180, p. 8. Accordingly, as in 04-ORD-180, EKCC determined, in a proper exercise of its discretion, that disclosure of the rosters would pose a threat to the safety and security of inmates, institutional staff, and the institution. In our view, the reasoning of 04-ORD-180 is equally applicable in this case; a copy of that decision is attached hereto and incorporated by reference. Because this appeal presents no reason to substitute our judgment for that of EKCC or the Department of Corrections, the agency's denial is affirmed.
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.
Brenda LewisLinda MayJonathan S. Milby
Footnotes
Footnotes
1 Acknowledging that 06-ORD-160 differs from the instant appeal insofar as "Ms. Lewis is being denied access to the shift duty rosters in their entirety, rather than being offered redacted copies of the rosters [,]" Mr. Milby correctly argued that 06-ORD-160 is factually distinguishable in that KRS 61.878(3) and KRS 61.878(4) are not implicated on the facts presented. Given our determination that 04-ORD-180 is controlling, further discussion is unnecessary.
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