Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Lee Adjustment Center did not violate the Open Records Act in denying Robert Barrows' October 25, 2010, request for a copy of the Form 5-1C incident statement he submitted to Assistant Warden Stivers on April 22, 2010, involving an injury to his right arm. We affirm LAC's denial of the two highlighted statements in the disputed record, but find that the remainder of the record must be disclosed to Mr. Barrows pursuant to KRS 61.878(4) .
In a timely written response, LAC invoked KRS 197.025, explaining that "[i]ndividual witness statements contain sensitive information relating to the internal security of the institution." On appeal, Mr. Barrows questioned this position noting that he authored the record and therefore had "personal knowledge of the contents . . . ." In supplemental correspondence addressed to this office, LAC responded that it denied Mr. Barrows' request:
because the LAC custodian believed that the incident statement's contents could pose a threat to the institution's safety and security. Often inmate statements contain sensitive information regarding the security of the facility or a matter under investigation. For this reason, LAC does not normally provide them to inmate requesters.
In closing, LAC cited 09-ORD-152 and 07-ORD-252, open records decisions issued by this office affirming, in each case, a correctional facility's denial of an inmate request for a record authored by the inmate requester.
On December 21, 2010, this office requested additional information from LAC, pursuant to KRS 61.880(2)(c), 1 to facilitate our review of the issue on appeal. Noting that in 07-ORD-252 and 09-ORD-152 "the record on appeal . . . demonstrated that the facility reviewed the disputed record to determine if disclosure would, in fact, threaten security," we expressed concern that "[n]either LAC's original nor its supplemental response suggests that such a review of Mr. Barrows' incident report occurred," and that the responses "[i]nstead . . . suggested that LAC had adopted a policy of denying such requests without reference to the content of the record itself." We therefore asked that LAC provide us with a copy of the disputed record for in camera inspection. Additionally, we asked that LAC "indicate whether the incident report was reviewed for content before Mr. Barrows' request was denied, and, if so, what, in general terms, was the nature of the threat to security that disclosure to Mr. Barrows constituted."
In response, 2 LAC denied the existence of a policy of blanket denial as to open records requests for incident statements, acknowledging that "an individual determination must be made regarding a given record's eligibility to be withheld." LAC explained that in this instance Assistant Warden David Frye "was consulted by LAC's custodian regarding the record at issue . . . and recommended against disclosure based on its specific contents." Continuing, LAC identified two statements in the report with a "highlighting rectangle" that would pose a threat to safety and security if revealed:
1. Description of security restraint procedures
2. Specific descriptions or names of locations to which the inmate was transported
It was LAC's position that "control of access to this type of information" was of the "utmost importance."
While it is unclear to us how LAC can prevent Mr. Barrows from orally communicating this sensitive information to other inmates, with or without a copy of the record, we will not substitute our judgment for that of the warden or his designee in deeming disclosure of the statements appearing in the highlighted rectangle to constitute a threat to institutional security. We therefore affirm its denial of the highlighted materials but find that KRS 61.878(4) requires disclosure of the remainder of the incident statement.
In 07-ORD-252 and 09-ORD-152, this office concluded that the records in dispute, consisting of amorous letters authored by the inmate requesters and directed to female correctional staff, could reasonably be classified as prohibited mail or contraband, within the meaning of corrections policies the disclosure of which could threaten institutional security. At pages 6 and 7 of 07-ORD-252, we observed:
KSP advises that Corrections Policy and Procedure (CPP) 3.1, II.B.3.d. prohibits employees from "[d]eveloping a relationship . . . [with] an offender other than that necessary in the normal conduct of business" and expressly proscribes romantic involvement with offenders. [The inmate's] written overtures to the employee, in this regard, placed the employee in a compromising position vis-a-vis her employer, when they were intercepted, and the inmate population, generally, when they become the subject of pervasive "gossip." KSP emphasizes that extraordinary measures are taken in maximum security facilities to insure the safety of female correctional employees and minimize the risk of inmate assaults. This measure is clearly among them. The letters in which [the inmate] transmitted his feelings could therefore reasonably be characterized as mail that "would create a threat to the security of the institution" within the meaning of "prohibited mail" found at CPP 16.2, II.H.7. As such, they can properly be classified as contraband as defined at CPP 9.6, II.B.3 insofar as they are "not authorized for retention or receipt by the inmate . . . ."
Nevertheless, we recognized that disclosure of the inmate's love letters did not represent the same threat to institutional security that disclosure of, for example, daily rosters and time and attendance reports for correctional officers represented, characterizing the issue on appeal as "a very close one." 07-ORD-252, p. 5.
LAC does not assert that the remainder of the incident statement constitutes contraband or offer any other explanation for nondisclosure of the unhighlighted material. The open records decisions upon which LAC relies are therefore distinguishable. KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
Having conducted an in camera review of the incident statement, we can identify no additional material for which exception can be claimed under KRS 197.025. We therefore find that LAC is required by KRS 61.878(4) to separate the excepted/ highlighted material and make the nonexcepted/ unhighlighted material available to Mr. Barrows.
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.
Robert Barrows, # 330402Betty ShepherdCole CarterAmy V. Barker
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
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2 LAC provided Mr. Barrows with a copy of its response, excluding the record in dispute.
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