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. In his request dated September 19, 2011, Mr. Pasha requested "a copy of Officer Martha Mills' written and Electronic recorded statements that led to Uriah Pasha # 92028 being placed in Admin. Seg 0-1-11 pending investigation into Making Threatening Statements." The request was received by Offender Information Services on September 22, 2011.
On September 22, 2011, Offender Information Specialist Marc Abelove denied the request pursuant to KRS 61.878(1)(h) as a record "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 ." (Emphasis in original.) Mr. Pasha appealed to this office on October 3, 2011, stating: "The investigation is complete and Ms. Mills is not a confidential informant."
On October 13, 2011, Assistant Counsel Linda M. Keeton, Justice and Public Safety Cabinet, responded on behalf of KSR. She states in part:
According to KSR, the only document submitted by Officer Mills' [ sic ] regarding Mr. Pasha during the past year is a "conflict sheet. " Those documents are made in confidence and are not intended to be circulated to inmates or other staff. When a correctional facility produces a record of a conflict regarding any combination of correction officer and/or inmate, it is a record which a Warden may, in the Warden's 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.
(Emphasis in original.) KSR does not appear to dispute Mr. Pasha's allegation that the investigation is now complete. Since a denial of a similar request from Mr. Pasha on the basis of the same ongoing investigation was upheld by this office under KRS 61.878(1)(h) in 11-ORD-163, and that initial basis for denial has now become moot in this appeal, we shall deal solely with KSR's argument under KRS 197.025(1).
KSR contends that the conflict sheet can be withheld under KRS 197.025(1) even after the investigation is complete. The statute 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. KSR's position is that the disclosure of the conflict sheet "would constitute a security threat to KSR correctional staff and inmates. "
In OAG 91-136, this office ruled that a conflict sheet concerning an altercation between inmates could lead to retaliation and therefore could reasonably be deemed to pose security risks to inmates, so 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. We believe this reasoning would apply equally to a conflict sheet concerning an altercation between an inmate and correctional staff if disclosure might lead to retaliatory behavior against a staff member. The commissioner's discretion under KRS 197.025(1) would thus extend to the conflict sheet at issue in this appeal. Accordingly, we conclude that KSR did not violate the Open Records Act by denying 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 AbeloveLinda M. Keeton, Esq.