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 Little Sandy Correctional Complex violated the Kentucky Open Records Act in the disposition of Glenn Odom's March 16, 2012, requests "to receive all of my medical notes/reports from Nurse Practitioner Cornett's exams; all dentist notes/reports from dental visits; all mental health notes/reports from Patrick Brown and John Long; all request forms ("sick call request") to be seen by Dental, medical and mental health, " and "all cell extraction notes/reports/e-mails regarding cell extraction on Jan. 13, 2012 including ofcs. occurance [sic] reports." In separate written responses dated April 3, 2012, 1 Beth Harper, LSCC Records Department, advised Mr. Odom that his former request was "denied per KRS 61.874 as a request may require payment of fees" but further noted "[y]ou may want to resubmit your medical request with payment to [Kentucky State Penitentiary]" as KSP has "access to the medical records that were recorded while you were here at LSCC." Ms. Harper denied the latter request "under authority of KRS 197.025[(1)] and KRS 61.878(1)(l)" as disclosure of the records being sought "would constitute a threat to the security of other inmates, the institution or institutional staff, and cannot be provided." By letter dated April 10, 2012, Mr. Odom initiated this appeal, making a number of related allegations which, in short, are not justiciable in this forum. In accordance with existing legal authority applying KRS 61.874 in this context, and KRS 197.025, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), this office affirms the agency's final disposition of both requests.
Upon receiving notification of Mr. Odom's appeal from this office, Assistant Counsel Linda M. Keeton, Justice and Public Safety Cabinet, responded on behalf of LSCC. Ms. Keeton explained that "[b]ecause Mr. Odom is now incarcerated at KSP, and has been in that facility since February 22, 2012, KSP has full access to his medical, dental and mental health records; further, his inmate account is at KSP." Accordingly, Mr. Odom "can submit a request for his records and a payment voucher to KSP." Referencing KRS 61.874 and Department of Corrections Policies and Procedures (CPP) 6.1, II A. 4., Ms. Keeton further observed that "[p]ayment is required before the agency will give him copies of the requested records." Although Mr. Odom may continue to submit his request(s) for such records to LSCC, Ms. Keeton advised, LSCC will forward the request(s) to KSP "because that institution now has custody of Mr. Odom's records as well as Mr. Odom."
With regard to the denial of Mr. Odom's request for the specified "cell extraction notes/reports/e-mails, " Ms. Keeton maintained that KRS 197.025(1) validates the agency's position. Releasing such records, Ms. Keeton explained, "would pose a security threat because the reports contain details of how the Cell Extraction Team operates when entering a cell to remove an inmate. That information could endanger the staff, the inmate, other inmates, and other persons at the facility." Citing prior decisions by this office, Ms. Keeton correctly observed that "[t]he Attorney General has consistently recognized that KRS 197.025(1) vests the [C]ommissioner or the Commissioner's designee with broad discretion in making this determination. . . . Accordingly, the [Office of the Attorney General] has declined to substitute its judgment for that of the correctional facility or the Department of Corrections." 2 Based upon the following, this office finds that LSCC did not violate the Open Records Act.
In addressing the unique issues surrounding access to public records in a correctional setting, the Attorney General has long recognized:
An inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. Although, as we have recently observed, "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof," an inmate's movements within the facility are presumably restricted . . . Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records.
95-ORD-105, p. 3, citing 94-ORD-90, p. 2. See also OAG 79-546; OAG 79-582; OAG 89-86; 92-ORD-1136; 11-ORD-119.
When copies of public records are requested, "the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." KRS 61.874(1). Neither this provision nor the remainder of the Open Records Act contains a waiver of this requirement for inmates. Accordingly, the Attorney General has previously held that correctional facilities like LSCC are permitted to require prepayment of copying fees, and enforce standard policies regarding assessment of charges against inmate accounts, despite the delay in processing the request which might inevitably result. 95-ORD-105, p. 3. However, this holding has not been construed to authorize any type of delay beyond that which is reasonably necessary to ensure prepayment of copying charges. Id.
In 04-ORD-004, this office expressly upheld the validity of CPP 6.1. More specifically, the Attorney General affirmed the denial by Eastern Kentucky Correctional Complex of the inmate request in question due to the failure of the inmate to provide the inmate identification information required by CPP 6.1, holding that the denial was "proper and consistent with its policies and procedures relating to inmate open records requests," as well as KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 04-ORD-004, p. 3. Likewise, in 08-ORD-044, this office specifically upheld CPP 6.1, B. 4. (requiring completion of Authorization to Use Inmate Account Form to process inmate request); the reasoning of that decision applies with equal force on the facts presented. A copy of 08-ORD-044 is attached hereto and incorporated by reference. See 05-ORD-228; 06-ORD-078; 08-ORD-157; 09-ORD-069. Inasmuch as the challenged policy "does not interfere, or threaten to interfere, with [Mr. Odom's] statutory right of access to nonexempt public records, " and is consistent with provisions of the Open Records Act, this office finds that LSCC did not violate the Act by requiring compliance with it and trusts that any remaining issues will be resolved when LSCC provides Mr. Odom with the requested copies upon receipt of the necessary documentation and payment. 08-ORD-044, pp. 4-5; 11-ORD-119.
Resolution of the remaining question presented turns on application of KRS 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.
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), records documenting the procedures employed in an execution (97-ORD-51), and extraordinary occurrence reports (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, LSCC determined, in a proper exercise of its discretion, that disclosing the cell extraction documents would pose a security threat to other inmates and LSCC 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, LSCC properly relied upon KRS 197.025(1) in withholding the records in dispute.
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:
Glenn Odom, # 219489Beth HarperLinda M. Keeton
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