Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and this office being sufficiently advised, we find that Eastern Kentucky Correctional Complex violated KRS 61.880(1) in responding to Iran Neal's October 3, 2015, request for eleven categories of records relating to "[t]he detention order against Iran Neal and Willie Williams on Sept. 9, 2015, and the following Category 6-13 disciplinary report." EKCC did not, however, violate the Open Records Act in its ultimate disposition of the request. On October 6, 2015, Eastern Kentucky Correctional Complex denied Mr. Neal's request. Citing KRS 197.025(1) and KRS 61.878(1)(l) , EKCC's open records coordinator explained:
There was a [Prison Rape Elimination Act] 1 investigation done, so therefore it has been determined by the department [that] record(s) you request would constitute a threat and cannot be provided. The Department makes decisions concerning security risks under authority of [the referenced statutes].
The open records coordinator then quoted the language of KRS 197.025(1). 2 Mr. Neal subsequently initiated this appeal, challenging EKCC's blanket denial of his request. 3
EKCC responded to Mr. Neal's open records appeal through counsel for the Justice and Public Safety Cabinet. Counsel expanded on the bases for denial of the eleven subpart request and agreed, "upon further review of the request for PREA investigation documents involving [Mr.] Neal" to provide sixteen redacted pages, including "staff notes and reports, PREA investigation summary reports, and documentation of a medical exam performed on [Mr.] Neal following the alleged incident." Counsel identified the redacted information as "statements from other witnesses and observations by medical professions." He invoked KRS 197.025(1), KRS 61.878(1)(a), and past ORDs, in support of EKCC's position. Additionally, he explained, EKCC continued to withhold:
. Willie Williams' medical exam, under authority of KRS 197.025(2), because it did not contain a specific reference to Mr. Neal and was therefore inaccessible to Mr. Neal under authority of KRS 197.025(2); and
. Security video footage, under authority of KRS 197.025(1), because disclosure of the footage might enable inmates and others to ascertain the methods used to monitor inmate activity including areas under observation, those not under observation, and blind spots.
Counsel identified numerous authorities supporting EKCC's position.
EKCC's original response to Mr. Neal's request was procedurally deficient. Although counsel offered no explanation for the reassessment of that response and the subsequent production of sixteen responsive, albeit redacted, records, it is clear that the original response did not satisfy the requirements of KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added.) EKCC failed to identify, in anything other than unacceptably general terms, the nature of the record withheld. EKCC also failed to provide an explanation of how the single referenced statute, KRS 197.025(1) , applied to those records. The deficiencies in this response were, however, corrected on appeal. Bearing in mind that the public agency is statutorily assigned the burden of proof in sustaining its actions, 4 we encourage EKCC to apply greater effort to discharging its duties under KRS 61.880(1) in responding to future open records requests.
We affirm EKCC's partial denial of Mr. Neal's request based on KRS 197.025(1) and (2). These provisions prohibit inmate access to records that are deemed to threaten the security of inmates, correctional staff, the institution, or "any other person" or that do not contain "a specific reference" to the requesting inmate. Based on the authorities cited by counsel, we agree that disclosure of records, or portions of records, identifying witnesses, medical professionals, and staff who were questioned in the course of the investigation posed a threat to the security of those individuals and might also threaten security by revealing investigatory techniques and methods. KRS 197.025(1) also supports nondisclosure of security video footage that might reveal those areas monitored, those that are not monitored, and those that are monitored but have blind spots. Similarly, we affirm EKCC's reliance on KRS 197.025(2) to support denial of the only responsive PREA investigative document not disclosed to Mr. Neal, Mr. Williams' medical examination report, because that report did not contain a specific reference to Mr. Neal. Ample authority exists that supports this interpretation of the law.
The Prison Rape Elimination Act, 42 U.S.C. 15601 et seq. , lends additional support to limiting disclosure of records relating to allegations of sexual assaults of prisoners. Although not a federal confidentiality statute, 42 U.S.C. 15606 Sec. 7(e)(2)(J) calls for the establishment of "national standards for enhancing the detection, prevention, reduction, and punishment of prison rape" by, inter alia , "ensuring the confidentiality of prison rape complaints and protecting inmates who make complaints of rape, " as well as "protect[ing] inmates who make prison rape complaints from retaliation, 5 and assur[ing] the impartial resolution of prison rape complaints." These recommended standards, in tandem with KRS 197.025(1) and (2), reflect a commitment to restricting unfettered access to records such as those Mr. Neal requested. With the exception of the procedural violation identified above, we find no error in EKCC's ultimate handling of Mr. Neal's request.
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.
Footnotes
Footnotes
1 42 U.S.C. 15601 et seq.
2 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.
3 Mr. Neal also presented multiple non-open records issues that are not appropriate for review under KRS 61.880(2)(a). That statutes limits our authority to review of the request and denial and issuance of "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
4 KRS 61.880(2)(c).
5 42 U.S.C. 15606 Sec. 7(e)(2)(K).