Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in denying Uriah Pasha's September 19, 2011, request for a "copy of Officer Martha Mills' recorded statement made to Captain Carlos Schantz of Internal Affairs involving the placement of Uriah Pasha # 092228 in Admin. Seg[regation] January 30, 2011, pending investigation into illegal activity." KSR Offender Information Specialist Marc Abelove denied Mr. Pasha's request in a timely (but otherwise deficient) 1 response, quoting the language of KRS 61.878(1)(h) without explanation. Arguing that Officer Mills is "not a confidential information because I'm naming her by name," Mr. Pasha initiated this appeal shortly thereafter. Assistant Counsel Linda Keeton, Justice and Public Safety Cabinet, responded on behalf of KSR, invoking KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l) to justify the agency's denial of the only existing responsive document. Consistent with governing precedents, the Attorney General affirms the final disposition of Mr. Pasha's request.
In responding to Mr. Pasha's appeal, Ms. Keeton advised that the "only document located by KSR, submitted by Officer Mills naming Inmate Pasha during the time frame including January 2011, is a 'conflict sheet. ' Releasing those documents to the public poses a security threat to the institution [.]" 2 Those particular documents, KSR explained, "are made in confidence and are not intended to be circulated to inmates or other staff. " Citing OAG 91-136 and 10-ORD-180, as well as KRS 61.878(1)(l), KSR further observed that "[w]hen a correctional facility such as KSR "produces a record of a conflict regarding any combination of correction officer and/or inmate, it is a record which a Warden may," in his discretion, withhold from disclosure under KRS 197.025(1), since disclosure of the record to the inmate would constitute a threat to the security of the institution and the individual employees whose job is to supervise the inmate. " In closing, KSR correctly noted that the "Attorney General has consistently recognized that KRS 197.025(1) affords the Commissioner broad discretion, and that the Office of the Attorney General should not 'substitute its judgment for that of the correctional facility or the Department of Corrections.'" Although KSR initially failed to justify its reliance on KRS 61.878(1)(h) with adequate specificity per KRS 61.880(2)(c), further consideration of this argument is unnecessary given that KRS 197.025(1) is controlling.
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 indicated, 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.
Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from the public for a variety of records based on KRS 197.025(1), including, but not limited to conflict sheets (OAG 91-136), psychological evaluations of inmates (OAG 92-25, 92-ORD-1314), facility canteen records (94-ORD-40, 96-ORD-209, 97-ORD-25), personnel records of correctional officers (96-ORD-179, 96-ORD-182, 96-ORD-204), facility deficiency reports (96-ORD-222), records confirming that inmates submitted to HIV testing (96-ORD-243), inmate honor dorm waiting lists (97-ORD-33), and records documenting the procedures employed in an execution (97-ORD-51), extraordinary occurrence report (07-ORD-039). See 03-ORD-190 (affirming denial of request for incident reports because allowing inmates to view such reports would provide "'a means by which inmates could get information that may become the basis for retaliation against other inmates or security staff of the institution'"); 10-ORD-056 (upholding denial of request for statements of personnel at correctional facility contained in EOR); 10-ORD-063; 10-ORD-099.
Here, KSR determined, in a proper exercise of its discretion, that disclosing the responsive conflict sheet would pose a security threat to other inmates and KSR staff. The Attorney General, as previously noted, has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 96-ORD-179; 00-ORD-125. As before, this office declines to substitute its judgment for that of the correctional facility or the Department of Corrections. In sum, KSR properly relied upon KRS 197.025(1) in withholding the requested statements; accordingly, consideration of the alternative basis for denial is unnecessary.
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, # 092028Linda M. KeetonMarc Abelove
Footnotes
Footnotes
1 In failing to provide any explanation of how the cited exception applied to the record(s) being withheld, KSR violated the mandatory terms of KRS 61.880(1).
2 "A conflict sheet is prepared when an inmate reports that he has had an altercation with another inmate, or . . . that he was the victim of an assault." OAG 91-136, p. 2.