Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Reformatory ("KSR") violated the Open Records Act in responding to the open records request of inmate Uriah Pasha. On September 2, 2011, Mr. Pasha requested a copy of:
E.O.R. that lead to Uriah Pasha # 92028 placement in Admin. Seg 9-1-2011; all Information Reports and Incident Reports that were written in connection with the placement of Uriah Pasha 92028 in Admin. Seg. 9-1-2011.
The request was received by Offender Information Services on September 7, 2011.
On September 13, 2011, Offender Information Specialist Marc Abelove provided Mr. Pasha with a copy of the relevant detention order and further stated:
I spoke with DW Ravonne Simms 09/13/11 and she has informed me that the investigation into the incident where you were placed in Admin Segregation on 09/01/11 has not yet been concluded as she has been out of the institution and has just returned on 09/12/11. Therefore, all that I can provide at this time is the one (1) detention order in regards to you being placed in Admin. Segregation. KRS 61.878 (h) [ sic ] ["]Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release to be used in a prospective law enforcement action or administrative adjudication [.] Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action;" The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884. You may request more information at a later date.
We note that the response to Mr. Pasha was issued one day beyond the time provided by KRS 61.880(1), which requires notification of a decision within three (3) business days, excluding weekends and legal holidays. This constituted a procedural violation of the Open Records Act.
In his September 13, 2011, letter of appeal to this office, Mr. Pasha states in part:
There is no such thing as an Investigation into Making Threatening Statement. Either I said it or I did not. It[']s obvious no staff member reported this incident. Deputy Warden Coin informed me 9/2/2011 that they received unverified information that I made a statement.
There is no physical evidence that can be obtained from any investigation.
On September 29, 2011, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. She states in part:
KSR did not release other reports that were prepared at the time the request was received because the detention order was issued to allow an investigation into possible violations of statutory or administrative regulations. KSR indicated that the release of the reports would reveal the identity of informants not otherwise known.
?
In a correctional institution, an inmate is often removed from general housing and placed in the segregation unit for the safety and security of the institution and to allow an investigation to be completed without threats or interference to those involved in the investigation. Institutional policy incorporated by reference into administrative regulation provide[s] for the investigation and disciplinary action from those investigations. CPP 10.2, 15.2, 15.6, 501 KAR 6:020 [URL omitted]. KSR continues to conduct an investigation to determine if there were violations of statutes or regulations that require disciplinary action concerning Inmate Pasha. Final action has not been taken concerning this investigation. Several records that could be considered to be statements of informational reports were not provided in response to the request.
In support of KSR's argument under KRS 61.878(1)(h), she asserts:
The investigation is a necessary part of an administrative adjudication (inmate disciplinary process) handled by KSR. The records withheld were compiled in the process of detecting and investigating statutory or regulatory violations at the facility. Disclosure of the investigative documents would cause harm by premature release of information to be used in an administrative adjudication by revealing confidential sources of information, prematurely disclosing factual information that would interfere with obtaining reliable information and interfere with any other witness interviews.
We have no reason to doubt KSR's assertion that there is an ongoing investigation, regardless of whether Mr. Pasha believes the investigation to be necessary. "This office has consistently recognized that an agency involved in an administrative adjudication is not required to disgorge documents relating to its investigation or enforcement action until the action has been concluded." 93-ORD-69, p. 2. An inmate disciplinary matter is an administrative adjudication within the meaning of KRS 61.878(1)(h). 02-ORD-77. Since KSR's internal administrative investigation was still ongoing at the time of Mr. Pasha's request, we conclude that the institution properly denied his request for a copy of pertinent documents under KRS 61.878(1)(h). 99-ORD-60.
KSR additionally argues that the records could be withheld under KRS 197.025(1) even after the investigation is complete:
The disclosure of the records would pose a threat to the security of the institution and individuals. ?
Simply redacting names from the records as proposed by Inmate Pasha will not prevent the security risk since other information available from the records could assist in identifying individuals and place them at risk. If the information in the records is needed in a disciplinary proceeding, a summary of the information from the records used in the proceeding is all that would be made available.
Although the existence of the ongoing investigation is dispositive of the present appeal, we believe the security issue raised by KSR is significant enough to warrant discussion. KRS 197.025(1) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, no person 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 section affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security." 96-ORD-179. We agree that the situation described in this appeal could reasonably be deemed to involve security risks for hostile incidents between inmates, and that the broad discretion of the commissioner or designee under KRS 197.025(1) would include the decision whether to withhold or redact these documents if they contain potentially inflammatory material.
Finally, KSR indicates that no "E.O.R." (extraordinary occurrence report) was prepared in connection with Mr. Pasha's placement in administrative segregation, nor is such a report routinely prepared in such circumstances. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such records existed. Cf.
Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). Accordingly, we conclude that KSR did not substantively violate the Open Records Act in its response to Mr. Pasha's 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.
Distributed to:
Uriah Pasha # 092028Marc AbeloveAmy V. Barker, Esq.