Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
David Hoff initiated this appeal by letter dated March 29, 2016, challenging the denial by the Kentucky State Reformatory ("KSR") of his March 24, 2016, request for a "copy of my [Prison Rape Elimination Act of 2003, 42 U.S.C. § 15601, et. seq . ('PREA')] Assessment done March 2016 at KSR." In a timely written response, Offender Information Specialist Connor Jeffries denied Mr. Hoff's request on the basis of KRS 197.025(1), quoting the language of that provision without further explanation. 1 Upon receiving notification of Mr. Hoff's appeal from this office, Staff Attorney Oran S. McFarlan, III, Justice and Public Safety Cabinet, responded on behalf of KSR as follows:
[T]he assessment at issue is required to be completed per Kentucky Corrections Policy and Procedure ("CPP") 14.7(F)(1), which states that "[a]n offender shall be assessed during intake screening within 24 hours of arrival at the Assessment and Classification Center and upon each transfer to a facility. Each screening shall include a review of any history or sexual abuse-victimization or sexually predatory behavior. Housing concerns shall be documented on the screening form." Mr. Hoff is requesting a copy of his recent KDOC Screening for Risk of Sexual Victimization and Abusiveness upon his transfer to KSR. Importantly, the information contained in these types of screening reports is highly sensitive ( e.g. , sexual preferences, prior instances of sexual victimization or abuse, prior convictions for sex offenses, prior institutional discipline for sexually inappropriate behavior, prior instances of violent conduct, etc.).
Due to the nature of information in these reports, CPP 14.7(F)(4) is clear that "dissemination of information related to and resulting from the assessment shall be controlled and limited to staff necessary to inform treatment plans and make security and management decisions regarding housing, beds, work, education and program assignments." This policy is required by and in compliance with federal law. See 28 CFR § 115.41(i) ("The agency shall implement appropriate controls on the dissemination within the facility of responses to questions asked pursuant to this standard in order to ensure that sensitive information is not exploited to the inmate's detriment by staff or other inmates" ). [Footnote omitted.]
Quoting the language of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(1), and citing prior Open Records Decisions, KSR correctly observed that the Attorney General's Office has consistently declined to substitute its judgment for that of the correctional facility or the Department of Corrections ("DOC") when applying KRS 197.025(1). Mr. McFarlan advised that the requested assessment "contains information of a highly sensitive nature that is used to make security and management decisions at the institution and is not meant to be available to inmates (and all institutional staff) ." Disclosure of the information contained in the assessment to Mr. Hoff "could jeopardize his safety if somehow the assessment was seen and improperly used by others at the institution to intimidate, threaten, or incite violence." Accordingly, KSR asked the Attorney General to again "defer to the reasonable exercise of discretion by the DOC in this matter."
Resolution of this appeal turns on the application of KRS 197.025(1), which provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, 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.
As indicated, this provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(1), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are included among those records removed from application of KRS 61.870 to 61.884.
By enacting KRS 197.025(1), "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 03-ORD-190. In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3; 03-ORD-190. Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 03-ORD-190 (affirming denial of request for incident reports because allowing inmates to view such reports would provide "'a means by which inmates could get information that may become the basis for retaliation against other inmates or security staff of the institution'"). Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from the public for a variety of records based on KRS 197.025(1), including, but not limited to conflict sheets (OAG 91-136, 11-ORD-177), psychological evaluations of inmates (92-ORD-1314), facility canteen records (97-ORD-25), personnel records of correctional officers (96-ORD-204), facility deficiency reports (96-ORD-222), HIV testing records of inmates (96-ORD-243), inmate honor dorm waiting lists (97-ORD-33), extraordinary occurrence reports (07-ORD-039), and personnel statements contained in EORs (10-ORD-056). The instant appeal presents no basis to depart from this line of authority.
In a proper exercise of its discretion, the DOC promulgated 501 KAR 6:020, 2 which incorporates by reference CPP 14.7, relating to Sexual Abuse Prevention and Intervention Programs. CPP 14.7(F)(4), as noted, expressly provides that "dissemination of information related to and resulting from the assessment shall be controlled and limited to staff necessary to inform treatment plans and make security and management decisions regarding housing, beds, work, education and program assignments." This office is "not in a position to second guess the [DOC] or to conclude that its policy" of withholding PREA assessments per CPP 14.7(F)(4) is an abuse of its broad discretion under KRS 197.025(1). 06-ORD-120, p. 5; 08-ORD-242 (policy of institution represented a legitimate exercise of the broad discretion granted to DOC by KRS 197.025(1), and therefore corresponded to a statutory enactment, "rather than purporting to impermissibly add a requirement, and in conjunction with corresponding sections of CPP 6.1, provide[d] a legitimate basis for denying" inmate request); compare
Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008)(rejecting DOC's reliance on a section of CPP 6.1 that did not correspond to provision of the ORA "because it purports to add a requirement not found in the statutes," and the DOC "'cannot by its rules or regulations, amend, alter, enlarge or limit the terms of the legislative enactment.'")(citations omitted).
Further support for this conclusion exists when the policy was adopted in accordance with 28 CFR § 115.41(i), pursuant to which "[t]he agency shall implement appropriate controls on the dissemination within the facility of responses to questions asked pursuant to this standard in order to ensure that sensitive information is not exploited to the inmate's detriment by staff or other inmates. " See also 15-ORD-208 (recommended standards contained in PREA, "in tandem with KRS 197.025(1) and (2), reflect a commitment to restricting unfettered access to" PREA investigative records). In affirming the denial by KSR of Mr. Hoff's request for his March 2016 PREA Assessment, "[w]e must also consider the fact that other parties . . . would have the same access under the Open Records Act as" Mr. Hoff to all of the highly sensitive information contained in that record.
Zink v. Commonwealth, 902 S.W.2d 825, 829 (Ky. App. 1994); 07-ORD-049 (regardless of her intended use of the records in dispute, requester "stands in the same shoes as any other requester under the Open Records Act as the Act incorporates KRS 197.025(1)"); 04-ORD-180. Although KSR initially failed to provide any explanation of how KRS 197.025(1) applied to records being withheld, as required under KRS 61.880(1), KSR adequately demonstrated on appeal that disclosure of the requested PREA Assessment would constitute a legitimate security threat within the meaning of that provision. Accordingly, this office declines to substitute its judgment for that of the DOC or KSR. The denial is affirmed.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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 KSR also quoted the language of KRS 61.878(1)(a) in asserting that disclosure of "the file pertaining to a sexual assault on 11-10-13 & 03-15-14 constitutes an unwarranted invasion of personal privacy and sensitive information to the other parties involved." However, on appeal Mr. Jeffries advised that he "accidentally included language" in his response that did not apply to Mr. Hoff. The statement above "should have been edited out of my response," Mr. Jeffries continued, "as it has no applicability whatsoever to Mr. Hoff or the document he requested." KSR advised that Mr. Jeffries' explanation "is an attempt to assuage the confusion and concerns expressed by Mr. Hoff in his appeal letter and confirm that there is nothing in his offender file about alleged sexual assaults" on those dates. Accordingly, further discussion of this error is unwarranted.
2 Among other statutory provisions, KRS 197.020(1) authorizes the DOC to promulgate administrative regulations necessary for operating the penitentiaries under its jurisdiction. "Administrative regulations properly adopted and filed have the full effect of law and are required to be enforced." Harrison's Sanitarium, Inc. v. Dep't of Health, 417 S.W.2d 137, 138 (Ky. 1967)(citation omitted). "Simply stated, regulations are valid as long as they are consistent with the statutes authorizing them." 07-ORD-060, p. 5.