Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Kentucky Open Records act in its disposition of the request of Edward Mokrzycki for copies of records relating to inmate Tanner Ball. We conclude that the actions of KSP were in accordance with the Act.
Mr. Mokrzycki states that he made a written request dated February 9, 2013, for copies of:
Information on Inmate Tanner Ball (242404) all write ups that Tanner Ball has received while being in the custody of the Kentucky State Penitentiary, all grievances that [T]anner has filed while being in custody, Tanner Ball's dis[ci]plinary record since being in custody, Time Calculation sheet that shows the time that Tanner was sentenced to showing any county time that Tanner had received before going into the custody of the Kentucky State Penitentiary, the prisoner hand book that is issued to inmate upon arriving at the facility and if not in violation of HIPPA [ sic ] Tanner [']s medical records while being in the custody of the Kentucky State Penitentiary.
KSP indicates that it never received this request. It did, however, receive his February 10, 2013, request for copies of:
(Information of Inmate Tanner Ball 242404) All gr[i]ev[a]nces filed by Tanner [B]all, entire write up history, entire disciplinary record, A copy on [ sic ] any special video made of removal of Tanner Ball using excessive force to remove or extract Tanner [B]all, replies to Tanner's grievances and any actions that were taken, all of tanner [ sic ] time calculation sheets from the time he was taken into custody of the Kentucky Department of Corrections.
KSP received this letter on February 20, 2013, and Offender Information Supervisor Amy Roberts replied on February 22, 2013, in pertinent part as follows:
In order to process this request this office must received [ sic ] a release form from Mr. Ball verifying that you are representing him and that he authorizes the release of above said information.
The present appeal was received by this office on March 5, 2013.
In his appeal, Mr. Mokrzycki explains that he is not an attorney but is "gathering information in order to help a friend attain legal counsel." He further states:
The information that I requested is as follows and as you can see there is no reason at all for the two dyne [ sic ] my open records request because there is nothing that I requested that is in violation of HIPPA [ sic ] privacy right and nothing I requested put the safety, welfare and security of the facility at risk.
This addresses only the items in Mr. Mokrzycki's February 10 request, as it does not include the prisoner handbook and medical records mentioned in his February 9 request. Since he attached both requests to his letter of appeal, however, we consider both requests to be part of this appeal.
On March 11, 2013, KSP sent a response to Mr. Mokrzycki in reply to the February 9 request, which it had just received. The relevant part is as follows:
The Penitentiary has located 108 pages of write ups for Tanner Ball.
Inmate grievances may not be released without a signed waiver of confidentiality by the inmate who filed the grievance. The grievances will not be able to be released without written authorization from Tanner Ball.
Other than the write ups previously mentioned, the Penitentiary can provide a list of disciplinary actions concerning the write ups involving Tanner Ball. The list includes 2 pages.
The time sheets showing any jail custody credit include 2 pages. The social security number and date of birth except for the year will be redacted from the time calculation records pursuant to KRS 61.878(1)(a) and 197.025(1) since they are information of a personal nature where the public disclosure constitutes an unwarranted invasion of personal privacy and are sensitive personal information that involves the risk of identity theft.
The inmate hand book includes a total of 36 pages.
Pursuant to KRS 61.878(1)(a) an individual's medical record contains information of a personal nature the public disclosure of which constitutes an unwarranted invasion of personal privacy.
Thus, the withheld materials pertaining to the first request are limited to the inmate grievances, the medical records, and the redacted Social Security number and date of birth for Tanner Ball.
On the same date, March 11, KSP sent Mr. Mokrzycki a supplemental response to his February 10 request, which added the following pertinent material:
After an extensive search we have determined that the video you request does not exist. The video does not exist because at no time since Tanner Ball's arrival at KSP has a move team been formed to extract him from a cell.
Replies and actions concerning grievances are part of the grievances. Inmate grievances may not be released through an open record request pursuant to KRS 61.878(1)(l) and 197.023 without a signed waiver of confidentiality by the inmate who filed the grievance. The grievances will not be able to be released without written authorization from Tanner Ball.
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. Therefore, the only additional items still at issue from the February 10 request are the "replies" to Mr. Ball's grievances and "actions" concerning his grievances.
On March 12, 2013, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded to this appeal on behalf of the agency:
KSP correctly indicated that an authorization (or release) is required from Tanner Ball in order for the institution to release any documents that are part of a grievance or response to a grievance filed by Tanner Ball. Inmate grievances may not be released through open record requests pursuant to KRS 61.878(1)(l) and 197.023 without a signed waiver of confidentiality by the inmate who filed the grievance. KSP acknowledges that i[t] should have noted these statutes in its response.
KSP has reviewed its response to the requests for the disciplinary records and the time calculation sheets. KSP will provide those records upon prepayment of copying and postage costs. ? The social security number and the date of birth (except for the year) will be redacted from the time calculation records pursuant to KRS 61.878(1)(a) and 197.025(1) since they are information of a personal nature where the public disclosure constitutes an unwarranted invasion of personal privacy and are sensitive personal information that involves the risk of identity theft. ? If an authorization from Tanner Ball for the release of the records is received with the payment for the records, then the redaction will be unnecessary.
?
...KSP will not provide the medical records of the inmate pursuant to KRS 61.878(1)(a) since an individual's medical record contains information of a personal nature the public disclosure of which would constitute an unwarranted invasion of personal privacy.
In regard to Mr. Ball's grievances and all related documents in the grievance files, we note the agency's admission that KSP should have cited KRS 197.023 in its response along with KRS 61.878(1)(l), by which the confidentiality statute is incorporated into the Open Records Act. The failure to cite those statutes was a procedural violation of KRS 61.880(1), which requires "a statement of the specific exception authorizing the withholding of the record."
Substantively, we must examine the provisions of KRS 197.023, which states in part:
(1) Each facility operated by the Department of Corrections or under contract to the department shall maintain reports of all grievances by inmates during a calendar year. A grievance report shall be an open public record and made available to any person who requests to see the file at the site as long as the inmate has signed a waiver of confidentiality.
?
(3) With the written permission of the inmate, a photocopy of the file may be made and the content may be released to the public. The facility may require a ten cent ($ 0.10) per page copying fee.
This statute explicitly gives inmates a right of confidentiality in the contents of their grievance files. The disclosure of these records is conditioned upon the inmate's written consent. Therefore, KSP was not in error to require a waiver of confidentiality from Mr. Ball before making these records available.
This leaves for consideration only Mr. Ball's medical records and his redacted date of birth and Social Security number, both withheld pursuant to the privacy exception in KRS 61.878(1)(a). As to the medical records, we attach and incorporate by reference 03-ORD-023, in which we observed that "few records are accorded greater protection than medical records." In medical records "there is a ? public interest in personal privacy [that is] strongly substantiated." Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992). We find nothing in the record to outweigh this heightened privacy interest and therefore find that KSP did not violate the Open Records Act by withholding the medical records.
Regarding the date of birth and Social Security number, the agency mentions the risk of identity theft in addition to more generalized privacy concerns. The courts have noted that Social Security numbers have become "keys to the information kingdom" concerning private individuals, while their disclosure in no way advances the fundamental purposes of the Open Records Act. Zink v. Com., 902 S.W.2d 825, 828 (Ky. App. 1994). We know of no case in which this office or a court has required disclosure of a Social Security number. 10-ORD-165.
Date of birth, while normally enjoying similar privacy protection, has been subjected to a limited exception for correctional inmates, in a case where access to a Department of Corrections database was requested for the purpose of "monitoring the conduct of the Department ? in responding to the demands of a multi-generational inmate population." 00-ORD-206. No such overriding public interest in disclosure, however, is presented here. 1 Accordingly, we find that KSP's redaction of Social Security number and date of birth was not a violation of the Open Records Act. Thus, we find no substantive violation of the Act in KSP's disposition of Mr. Mokrzycki's requests.
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 proceedings.
Distributed to:
Mr. Edward MokrzyckiMs. Amy RobertsAmy V. Barker, Esq.
Footnotes
Footnotes