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 Marion Adjustment Center ("MAC") violated the Open Records Act in responding to the open records request of inmate Chris Hawkins. In his request dated May 16, 2012, Mr. Hawkins requested copies of "all statements collected by Captain Cox and all 51C forms, extraordinary occur[re]nce forms and investigative results from Capt. Cox regarding c/o's Howard and Kelley violating PREA and hurting me on 5/7/12." The request was received on May 17, 2012, and the response was dated May 25, 2012; assuming there to have been no prior written response, this delay of six (6) business days was a procedural violation of KRS 197.025(7), which requires a response to be made within five (5) days excluding weekends and legal holidays.
The records custodian responded, in relevant part:
I am in receipt of your request for 5-1C statements, EOR, and investigative results regarding a PREA incident on 5-07-2012. I am including a copy of the Extraordinary Occurrence Report with this response.
The investigative results and 5-1C statements will not be disclosed to you pursuant to KRS § 197.025(1) as we have determined that the release of these documents would pose a security and safety risk to the facility, facility employees, and other residents. As part of an investigatory file, these documents reveal sources and methods of investigation; the identities of individuals who provided information confidentially to investigators; and confidential information about you and other prisoners. The revelation of this information could compromise the effectiveness of the facility's investigatory program and jeopardize the safety of individuals who cooperated in the investigation.
Mr. Hawkins appealed to this office on June 11, 2012, stating that the response was untimely and that the records should not have been withheld or redacted.
On June 15, 2012, Assistant General Counsel Cole Carter, Corrections Corporation of America, responded on behalf of MAC. Although he states that MAC "timely responded to the appellant's request," he offers nothing to contradict the documentary evidence showing a procedural violation of KRS 61.880(1). We therefore find that the procedural violation occurred.
Substantively, Mr. Carter argues as follows regarding the redactions and withheld documents:
[F]ive names were redacted from the report. Each of the names was redacted pursuant to the safety and security concerns outlined in the response. ?
An investigatory program inside a prison relies upon the cooperation of sources--some inmate, some non-inmate--to succeed. A 5-1C is simply a written witness or participant statement. If investigators were required to inform sources that their words would be subject to disclosure to inmates, it is a certainty that sources would be less apt to cooperate.
[T]he appellant is seeking witness statements from witnesses who were questioned regarding allegations that the inmate made against a staff member. Witness statements will either reveal the names of witnesses who corroborated his claims or failed to corroborate his claims. Revelation of this information to the appellant will--at the very least--sow the seeds of discord among residents. It could also trigger conflicts and even violence.
Similarly, the results of an investigation should not be required to be disclosed to the appellant[.] Investigatory programs rely on confidentiality not only of sources, but also of techniques and methods. The records sought by the appellant explain methods used by correctional investigators to conduct investigations. Revelation of this information to the appellant will expose these methods to scrutiny and familiarization by other inmates. Such awareness will undermine the ability of investigators in this and other state prison facilities to successfully conduct investigations. In the long run, such compromises will weaken facility safety and security.
MAC's arguments are based on KRS 197.025(1), which 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.
In 10-ORD-063, this office ruled that providing an inmate access to statements made by prison personnel in connection with an EOR and investigation could reasonably be deemed to pose security risks, so that the broad discretion of the commissioner or designee under KRS 197.025(1) would include the decision whether to withhold these documents. ( See 10-ORD-063, copy attached, and authorities cited therein.) We also held in 08-ORD-251 that information about other individuals could be redacted from an EOR if the information were deemed to pose a risk to staff or other inmates. In light of these precedents, if the records containing the results of an investigation are deemed to pose a risk of retaliation or other security risk to inmates or staff members who participated or cooperated in the investigation, it is within the discretion of the commissioner's designee under KRS 197.025(1) to deny an inmate's access to those records. Accordingly, we conclude that MAC did not violate the Open Records Act by partially denying Mr. Hawkins' 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:
Chris Hawkins, # 103061Harrell Gray, Asst. WardenAmy V. Barker, Esq.Cole Carter, Esq.