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 failing to respond upon receipt of inmate Justin Murray's April 5, 2010, requests for the statements made by Lt. S. Simpson, Office T. Long, and Officer J. Cabrera, respectively, to "C.T.O. Stefany Thornberry that supported the Disciplinary Report charging [Mr. Murray] # 205024, with Category 6-1 and Category 7-1" for the August 2009 incident at NTC. By letter dated April 14, 2010, Mr. Murray initiated this appeal, observing that the records being sought "are the same records given to inmate Aaron Fisk as stated in [10-ORD-005]." 1 Upon receiving notification of Mr. Murray's appeal from this office, Amy B. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of NTC, advising that NTC received his requests on April 7, 2010, and responded on April 15, 2010. NTC "acknowledges that it was a day past the five day response time allowed in KRS 197.025(7) in sending its response and is reminded," Ms. Barker continued, by a copy of her written response, "that a letter explaining a delay must be sent by the deadline for the response." 2 Because NTC has acknowledged this procedural error, and Ms. Barker has taken steps to ensure that future violations will not occur, this office will not belabor the point. According to Ms. Barker, NTC ultimately advised Mr. Murray that disclosure of the statements being sought would pose a security threat, and cited KRS 197.025(1) as the basis for denial. 3 In accordance with prior decisions, the agency's ultimate disposition of Mr. Murray's request(s) is affirmed on the merits.
Ms. Barker correctly observed that Mr. Murray appears to be seeking "statements by DOC [Department of Corrections] personnel contained in the extraordinary occurrence report generated by NTC. . . . This issue was decided in 10-ORD-005. The reports connected with the EOR pose a security risk if released to the inmate population at large." Ms. Barker reiterated the argument made by NTC in support of its reliance on KRS 197.025(1) in that appeal, which this office found persuasive and subsequently reaffirmed in upholding denials of inmate requests for the subject EOR and reports generated in connection therewith in 10-ORD-008 and 10-ORD-026, and later upheld in relation to statements of the kind requested specifically in 10-ORD-056 and 10-ORD-063, arguing that the Attorney General should again "defer to the reasonable exercise of discretion by the DOC." Because the instant appeal presents no reason to depart from the reasoning of this line of decisions, the Attorney General reaches the same result.
In 10-ORD-056 (In re: Aaron Fisk/NTC), a recent decision by this office upholding the denial by NTC of another inmate's request for the statements by NTC personnel concerning his involvement in the August 2009 disturbance, which resulted in disciplinary write-ups against him, this office concluded:
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. [Jonathan] 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.
10-ORD-056, p. 2. In our view, this excerpt from 10-ORD-056, and the reasoning found on pp. 2-3 relative to application of KRS 197.025(1), are controlling on the facts presented. A copy of 10-ORD-056 is attached hereto and incorporated by reference. See 10-ORD-063 (affirming denial of request for statements based on 10-ORD-056), a copy of which is also included for the parties' reference. Because any responsive statements are part of the subject EOR, which is clearly exempt per 10-ORD-005 (holding that subject EOR was properly withheld on the basis of KRS 197.025(1)), this office affirms the agency's ultimate disposition of Mr. Murray's request(s).
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.
Justin Murray, # 205024Jennifer MaryeAmy V. Barker
Footnotes
Footnotes
1 This office actually found that any related issues were moot per 40 KAR 1:030, Section 6, based on the agency's response which, in relevant part, indicated that it had "identified an information report by each of the four officers that are connected to the two pending disciplinary actions concerning Mr. Fisk," copies of which it agreed to provide him with upon receipt of a completed Authorization to Use Inmate Account Form and related fees. As explained later, NTC addressed the apparent discrepancy between the statements being sought and those already provided in 10-ORD-056, the reasoning of which dictates the result of this appeal.
2 KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
3 Resolution of this appeal turns onKRS 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.
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