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 Luther Luckett Correctional Complex ("LLCC") violated the Kentucky Open Records Act in its disposition of an open request from inmate Keenan Elliott. 1 We conclude that LLCC did not violate the Act.
Mr. Elliott's request, dated September 18, 2014, stated as follows:
There was an investigation in June 2014 concerning a CTO Vicki Streeter and an Inmate named "Shane" in the Legal Library that I was a part of[.] I want a copy of all documents of any investigation conducted at LLCC that have my name in them concerning said investigation. And also a copy of all incoming legal mail.
The request was received at LLCC on September 26, 2014. On September 30, Offender Records Specialist Heather McManis responded that "internal affairs [has] no documentation of any investigation or disciplinary report" and that he would have to provide a date range for incoming legal mail. Mr. Elliott's appeal was received in this office on October 7, 2014.
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of LLCC on October 17, 2014. She states that "[u]pon further review, LLCC staff indicates that there is only one record that is responsive to the request" for documents from an investigation. This was a letter from inmate Shane that was intercepted by Internal Affairs and "used in the disciplinary report from inmate Shane" and mentions the name Keenan. A letter sent by Mr. Elliott "was shredded since it was not needed any longer." LLCC argues that releasing the letter written by inmate Shane would pose a security risk.
KRS 197.025(1) provides that "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." KRS 197.025(1) 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.
A memorandum from Unit Administrator Lindsay Stemle, dated October 17, 2014, explains that the letter from inmate Shane "contains personal information, which cannot be released to another inmate or released in a manner that could allow it to become known on the yard because it poses a security risk to specific inmates and the institution." It appears that the only reference to Mr. Elliott in the letter is an instance where inmate Shane mentions that he is "Keenan's friend."
Under the facts presented, we find that LLCC has articulated a credible basis for withholding the letter in the interest of security. In previous appeals, we have declined to substitute our judgment for that of the facility or the Department of Corrections, and the present appeal presents no reason to depart from this approach. 04-ORD-017. Consistent with the foregoing precedent, we conclude that LLCC did not violate the Open Records Act in denying access to the requested record on the basis of KRS 197.025(1).
As for the records of incoming legal mail requested by Mr. Elliott, Ms. Barker indicates that LLCC "has made further review" of the records and agreed to provide him copies of all records containing a specific reference to him during the time of his incarceration there, upon payment of copying costs and postage. As to those records, this appeal is moot.
With regard to legal mail records that do not contain a specific reference to Mr. Elliott, he is not entitled to inspect them under the terms of KRS 197.025(2), which provides that "KRS 61.970 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual." We have consistently interpreted this provision as requiring a reference by name. 03-ORD-150; 09-ORD-057. Accordingly, records containing no such reference may properly be withheld. Any deficiencies in LLCC's initial response have been ameliorated through the further review conducted during the pendency of this appeal.
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.
Footnotes
Footnotes
1 Mr. Elliott is currently incarcerated at the Kentucky State Reformatory, but was an inmate at LLCC during parts of 2013 and 2014.