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 Aaron Fisk's January 15, 2010, written request "for the specific statements made by the 4 C.O.s [sic] that led to my 6-1 and 6-3 writeup [sic]." Mr. Fisk indicated that he "received the wrong records" in response to his previous request as those records consisted of "the statements those 4 C.O.s [sic] made in answering my last [w]itness request questions," which he already had. Upon receiving notification of Mr. Fisk's appeal from this office, Staff Attorney Jonathan S. Milby, Justice and Public Safety Cabinet, clarified that in 10-ORD-005 this office resolved the issues presented again here. In that decision, he asserted, "the OAG notes that the [Department of Corrections] had agreed to release four information reports from each of the officers as requested by Mr. Fisk. It is those reports that were released, and which Mr. Fisk indicated he did not want or need." Because the ultimate disposition of Mr. Fisk's request by NTC in that appeal is nearly identical to that which culminated in the instant appeal, the reasoning found in 10-ORD-005 is equally applicable here. 1
In 10-ORD-005, this office, in relevant part, affirmed the denial by NTC of Mr. Fisk's request for the subject EOR on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Given the purported discrepancy between the statements being sought and those already provided, the undersigned counsel asked Mr. Milby to clarify the agency's initial response, which contained no reference to the EOR, but denied access to the "original Officers' reports from the evening of August 21, 2009" on the basis of KRS 197.025(1). Mr. Milby explained that the "statements Mr. Fisk requested were made by the officers during the investigation of the NTC disturbance, and are part of the EOR[,]" which "includes a large amount of material generated in the investigation of the incident, including witness statements by both inmates and staff. " According to Mr. Milby, "[t]he only responsive documents that are not part of the EOR are the statements in response to the written questions Mr. Fisk was allowed to pose to the officers, so those were the documents offered to him." Having confirmed that any responsive statements not already provided to Mr. Fisk are part of the subject EOR, which is exempt per 10-ORD-005, this office affirms the agency's disposition of his request.
Resolution of this appeal turns on the application of KRS 197.025(1), which provides:
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.
As previously indicated, KRS 197.025(1) 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.
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. More recently, this office has affirmed denials by NTC of inmate requests for various records concerning the incident on August 21, 2009, pursuant to KRS 197.025(1); the instant appeal presents no reason to depart from these governing precedents. See 10-ORD-005 (security video and EOR); 10-ORD-008 (all documents containing name of inmate and information reports, including EOR); 10-ORD-025 (EOR and related incident reports); 10-ORD-026 (EOR and related incident reports); 10-ORD-028 (statements relating to same incident). In our view, the analysis contained in 10-ORD-005 (Fisk/NTC), a copy of which is attached hereto and incorporated by reference, conclusively resolves the sole question presented.
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. In a reasonable exercise of its discretion, NTC/DOC determined that disclosure of the documents in dispute would constitute a legitimate security threat. 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. Accordingly, this office finds that 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. Fisk's request. Mr. Fisk has already been provided with the only statements to which he is entitled.
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.
Aaron FiskJonathan S. MilbyAndrea M. Windsor
Footnotes
Footnotes
1 Mr. Milby also correctly observed, in response to Mr. Fisk's claim that he is entitled to access the documents pursuant to his due process rights, that an Open Records appeal "is not the forum for litigating constitutional due process claims." In any event, Mr. Milby advised, NTC provided Mr. Fisk with "a summary of the evidence against him that was relied upon by the Adjustment Officer in his disciplinary report, and was further given the opportunity prior to his hearing to submit written questions to all officers who had made relevant statements that were used in his disciplinary proceedings."
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