Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
David B. Mour appeals Louisville Metro Department of Corrections' denial of his October 7, 2014, request for access to records relating to inmate Christina Sinkhorn consisting of:
. records identifying all persons who visited Ms. Sinkhorn while she was an inmate;
. records of nonprivileged telephone calls Ms. Sinkhorn made or received while she was an inmate; and
. records of money placed in Ms. Sinkhorn's account and the identity of all persons depositing the money.
As it had done in responding to an earlier request for the same records, LMDC provided Mr. Mour with updated records identifying Ms. Sinkhorn's visitors during her incarceration. Although it provided Mr. Mour with Ms. Sinkhorn's nonprivileged telephone records and her inmate account in responding to his earlier request, LMDC denied these portions of his October 7 request. LMDC explained:
Your request for phone records and phone recordings is being denied based on KRS 197.025(1) and (2) incorporated into the open records act by virtue of KRS 61.878(1)(l). Director Bolton deems the release of phone record logs and recorded phone calls as a threat to the security of the institution because it would provide a means by which an inmate could learn which phone calls are being monitored.
You also requested any records of any monies placed in Ms. Sinkhorn's account and the identity of any and all persons who deposited said monies. This request will also be denied based on KRS 61.878(1)(a). These records contain information of a personal nature where the public disclosure thereof would constitute an unwarranted invasion of personal privacy.
Questioning LMDC's change of position on disclosure of inmate telephone records, and noting that because all inmate telephone calls are recorded, with the exception of privileged telephone calls between inmates and their attorneys, and that inmates and their callers are so advised, Mr. Mour asserted that KRS 197.025(1) and (2) are inapplicable. No pattern of selective recording could be discerned from the records, he argued, since all nonprivileged telephone calls are recorded and inmates are aware of this. Similarly, he challenged LMDC's reliance on KRS 61.878(1)(a) to support denial of his updated request for Ms. Sinkhorn's inmate account records asserting that, aside from HIPAA privacy rights, inmates enjoy no right of privacy.
On appeal, LMDC responded that its earlier release of Ms. Sinkhorn's telephone and inmate account records was a discretionary release of otherwise exempt records the propriety of which was recognized in OAG 79-257. 1 Relying on a line of open records decisions holding that KRS 197.025(1) vests discretion in the Commissioner of the Department of Corrections or his designee to determine whether the release of records "represents a threat to institutional security, " 2 LMDC maintained that "director Bolton deemed such phone recordings as a threat to LMDC's security . . . ." Based on 11-ORD-170 and 07-ORD-182, we affirm.
Further, LMDC defended its denial of Mr. Mour's request for Ms. Sinkhorn's inmate account records under KRS 61.878(1)(a) and an agency policy restricting disclosure of inmate account balances "unless authorized by the Property Supervisor." Noting that individual inmate accounts are funded by the inmates and their families and friends, LMDC asserted that no public funds are deposited in the accounts, and the public's interest in the accounts is therefore de minimus . Based on 03-ORD-208, we affirm.
In 07-ORD-182 this office deferred to the determination of LMDC's director that release of inmate telephone recordings constituted a threat to security within the contemplation of KRS 197.025(1), incorporated into the Open Records Act by KRS 61.878(1)(l). 3 KRS 197.025(1) 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.
In enacting this provision, Kentucky's legislature "has created a mechanism for prohibiting . . . access to otherwise nonexempt public records where the disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3, cited in 04-ORD-106; 05-ORD-034. By its express terms, KRS 197.025(1) applies to all persons and not to inmates alone. Compare, KRS 197.025(2) , (3), and (4). Mr. Mour is therefore subject to its prohibitions on records disclosure in those cases in which the Commissioner of the Department of Corrections, or his designee, has determined that disclosure constitutes a threat to institutional security. Where, as here, it is not apparent how disclosure of the records represents such a threat, the agency should satisfy its statutorily assigned burden of proof 4 by generally explaining why disclosure threatens security, taking all necessary precautions to avoid defeating the security purpose for which the provision is invoked. 11-ORD-170 and 07-ORD-182 approve the denial of similar requests, on the basis of KRS 197.025(1), and we are bound to observe the holding in those decisions.
Turning to Mr. Mour's request for access to Ms. Sinkhorn's inmate account records, we are guided by 03-ORD-208 in affirming the agency's action. In that decision, the Attorney General affirmed a local detention center's denial of an inmate's request for his, and another inmate's, accounts. Although the detention center afforded him access to his own account, it denied his request for the other inmate's account on the basis of KRS 61.878(1)(a). That exemption authorizes public agencies to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " We implicitly rejected the argument that, in general, inmates have no privacy interests under the Open Records Act, recognizing that, at a minimum, information relating to the inmate's medical condition in his or her inmate accounting, including payments for prescriptions and health care related costs, warranted protection under KRS 61.878(1)(a). 5 We believe the financial records of an inmate qualify for at least limited protection under KRS 61.878(1)(a), insofar as they can be equated to a citizen's right of privacy in his finances, a matter "generally accepted by society, . . . in which an individual has at least some expectation of privacy. "
Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994); 6 see also,
Hines v. Dept. of Treasury, 41 S.W.3d 872 (Ky. App. 2001).
Against this interest, we weigh the public's interest in disclosure. Here, LMDC asserts that there is no legitimate interest in public disclosure of inmate accounts because those accounts are entirely funded by the inmate and his family and friends. Although we do not believe the source of funding of inmate accounts is entirely dispositive of this issue, we are unable to identify any other open records related public purpose that would be served by disclosure. 902 S.W.2d at 829. Absent an allegation that LMDC has not discharged its duty to properly manage the accounts of the inmates it houses, disclosure of information contained in those accounts "would do little to further the citizen's right to know what their government is doing and would not in any real way subject agency action to public scrutiny." 902 S.W.2d at 829. Mr. Mour's interest in the records, described in his email exchange with LMDC, is an important one, 7 but it "cannot be said to further the principal purpose of the Open Records Act. " 902 S.W.2d 829. That interest must yield to Ms. Sinkhorn's admittedly de minimus privacy interest in her inmate account.
Mr. Mour expresses concern about LMDC's inconsistent policy on nondisclosure of records previously disclosed. We refer him to a recent open records decision in which the Attorney General opined:
Kentucky's highest court has recognized that, in enacting the exemptions to the Open Records Act, "the General Assembly did not intend to mandate an iron rule of nondisclosure whenever an exemption applies." Lawson v. Office of the Attorney General, 415 S.W.3d 59, 68 (Ky. 2013). In support of this position, the Court recognized that such an "iron rule of nondisclosure run[s] counter to the principle, fundamental in our law, that rights, even fundamental rights, may be waived." Id. Although [the agency] did not expressly waive [the exemption] in releasing [the earlier record], it was not precluded from doing so under the rule announced in Lawson .
Assuming, for the sake of argument, that [the] release . . . was inadvertent, this office has long recognized that an agency's inadvertent actions or mistakes in releasing records does not estop the agency's denial of subsequent requests for similar records. OAG 83-140; OAG 90-117 (rejecting argument that agency was estopped from denying requester a copy of a record that it inadvertently released for inspection) ; compare 10-ORD-023 (agency's refusal to provide a copy of a record previously released for inspection was improper because it invoked no exemption supporting nondisclosure and failed to establish that the record was inadvertently disclosed). Whatever the reason for its inconsistent handling of [the] earlier request and the request which resulted in this appeal, we find no basis for assigning error to [the agency.] for its denial of [the later request].
15-ORD-092, p. 3-4. We reach the same conclusion in the appeal before us. Reminding LMDC that the Open Records Act assigns the burden of proof to it, and not to Mr. Mour, at KRS 61.880(2)(c), and that the Act envisions more than invocation of the exemption and recitation of the exemption's language, we affirm its denial of Mr. Mour's request based on the cited authorities.
Either party may appeal this decision 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.
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Distributed to:
David B. MourMark E. BoltonAnn CromwellBrianda A. Rojas
Footnotes
Footnotes
1 In OAG 79-257, the Attorney General stated that "exemptions are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody."
2 13-ORD-022, n. 4, citing 96-ORD-179. The full quotation from 96-ORD-179 reads as follows: KRS 197.025(1) "vests the commissioner or his designee with broad, although not unfettered, discretion to deny inmates [and others] access to records."
3 KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]
4 KRS 61.880(2)(c).
5 Resolution of 03-ORD-208 ultimately turned on the application of KRS 197.025(2) to the other inmate's account. Because that account did not contain a "specific reference" to the requesting inmate, he was foreclosed from inspection.
6 In Zink , the court quoted OAG 76-511 in which the Attorney General stated that "when an individual enters on the public way, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent ." 902 S.W.2d at 828 (emphasis added).
7 Mr. Mour indicates that he is attempting to ascertain whether Ms. Sinkhorn is defrauding his elderly client.