Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory (KSR) violated the Kentucky Open Records Act in its disposition of a January 6, 2016, open records request from inmate Jonathan Young. We conclude that KSR did not substantively violate the Act.
Mr. Young requested "copies of DR # K.S.R.-2015-00602, Dorm log, All C.O. handwritten reports, CD of hearing, extraordinary occur[re]nce report, med. Records that show Officer Steven Miller went to hospital." The facility's written disposition on January 8, 2016, stated simply: "Spoke to I/M Young. Sending DR, explained couldn't send EOR or medical or handwritten reports . CD of hearing in library." (Emphasis added.)
This disposition failed to comply with KRS 61.880(1), which requires a written denial to "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." Thus, KSR committed a procedural violation of the Act. Substantively, however, we affirm the partial denial of Mr. Young's request for the reasons given by Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, in KSR's February 10, 2016, response to this appeal.
KRS 197.025(2) 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. The medical records of the correctional officer are not accessible to Mr. Young because they contain no specific reference to Mr. Young by name. 1
KSR further advises that a redacted copy of the requested dorm log was provided to Mr. Young, with log entries not containing a specific reference to him removed. We likewise affirm this redaction on the basis of KRS 197.025(2). 2
The Extraordinary Occurrence Report (EOR) was not provided to Mr. Young because its disclosure was deemed to constitute a threat to security. 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.
KSR explains that "[a]n EOR contains almost minute by minute action information concerning the incident and employee responses" and "[p]roviding the EOR will give away response information, security details, and methods of the investigation that would harm the institution's ability to control contraband and detect future rule violations or crimes." Furthermore, we have previously affirmed denials of Extraordinary Occurrence Reports under KRS 197.025(1). ( See, e.g. , 12-ORD-123 and authorities cited therein.)
Under the facts presented, we find that KSR has articulated a credible basis for withholding the EOR 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 KSR did not violate the Open Records Act in denying access to the requested EOR on the basis of KRS 197.025(1).
Lastly, with regard to the handwritten officer report used to enter the disciplinary report into the Kentucky Offender Management System, KSR advises that it no longer exists: "This type of report is often destroyed since it is in essence hand written notes needed to prepare the disciplinary report in KOMS, which is the final, official record in the disciplinary process." 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. Based on the representation that the handwritten report is essentially a rough draft or temporary aid to memory, we believe the agency has adequately explained its nonexistence. In conclusion, therefore, we find no substantive violation of the Open Records Act.
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.
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