Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Uriah Pasha appeals Kentucky State Reformatory's denials of multiple open records requests relating to an incident for which he was disciplined. Mr. Pasha submitted his requests between March 7, 2016, and March 21, 2016. 1 In timely written responses, KSR disposed of those requests that implicated medical records by referring Mr. Pasha to the Medical Records Department. 2 KSR initially rejected Mr. Pasha's requests for the disciplinary report "generated in connection with Uriah Pasha . . . being placed in Administrative Segregation for Physical Altercation" based on his failure to provide "appropriate identification." 3
Responding to a subsequent request in which Mr. Pasha provided the date on which the incident occurred, KSR advised that his institutional file contained one disciplinary report relating to the March 3 incident. Because final disposition had not yet occurred, KSR asserted, the report was exempt under KRS 61.878(1)(h), (i), and (j). With reference to his request for "photos, pictures, and video footage generated in connection with" the incident, KSR invoked KRS 197.025(2) relating to institutional security. Citing 04-ORD-017 and 08-ORD-082, KSR stated that the video "contains information that may directly affect the security of the institution including methods or practices used to obtain the video, the area of observation, and blind spots for the camera. " Mr. Pasha thereafter initiated this appeal, asserting his entitlement to his disciplinary report under Corrections Policy and Procedure 15.6IIC(4)(6)(3).
In supplemental correspondence directed to this office, KSR reaffirmed its position. By way of background, KSR provided the following narrative:
An incident occurred on March 3, 2016, where Inmate Pasha "sucker punched" his cell mate. The adjustment officer found Inmate Pasha guilty of the offense of committing a physical act resulting in injury to another inmate. He was sentenced to 30 days of segregation with 15 days credit for time served, plus the loss of 60 days good time. Inmate Pasha appealed the finding to the Warden, which was pending at the time of the open records request.
The records that exist as requested by Inmate Pasha as the result of the March 3, 2016 incident are a Disciplinary Report, an Incident Report, 9 photographs and video footage . At the time Inmate Pasha made his open records request, the disposition of the adjustment proceeding/disciplinary action was still pending appeal to the Warden, and therefore, was denied in accordance with KRS 61.878(h)(i)(j). Inmate Pasha had already been given a copy of the Disciplinary Report, parts I and II (absent the "Warden's Review" section), which he acknowledged on the forms.
KSR's April 14, 2016, supplemental response (emphasis added).
Continuing, KSR explained the disposition of each request for which records were located as follows:
1. At some point, KSR provided Mr. Pasha with a copy of Part I and II of the disciplinary report. The "Warden's Review" Section was redacted. No statutory basis for the redaction was asserted.
2. KSR invoked KRS 197.025(1) as the basis for denying Mr. Pasha's request again asserting that disclosure of the videotape constituted a security threat.
3. Relying on KRS 197.025(2), KSR denied Mr. Pasha's request for photographs reflecting the injuries sustained by his cell mate and the presence of blood inside the cell. Because the photos did not contain a specific reference to Mr. Pasha, he was not entitled to copies.
4. KSR did not address Mr. Pasha's request for the existing incident report in its original or supplemental responses.
We affirm KSR's denial of Mr. Pasha's open records request for video footage and photographs on the basis of KRS 197.025(1) and (2), respectively, and his request for the disciplinary report on the basis of KRS 61.878(1)(i) and (j). However, we find that KSR must take additional steps to address Mr. Pasha's right of access to the incident report the existence of which KSR acknowledges.
KRS 197.025(1) and (2) provide:
(1) 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.
(2) KRS 61.870 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.
These provisions impose restrictions on access to inmate and facility records. Requesters proceeding under the Open Records Act may properly be denied access under the stated terms. Mr. Pasha, having elected to proceed under the Open Records Act, is bound by these restrictions which are incorporated into the Act by KRS 61.878(1)(1). 4 Thus, in
Zink v. Com., Dept. of Workers Claims, Labor Cabinet, 902 S.W.2d 825, 838 (Ky. 1994) the Kentucky Supreme Court recognized that analysis under the Open Records Act "does not turn on the purposes for which the request . . . is made or the identity of the person making the request." The existence of a corrections policy recognizing his entitlement to records in a disciplinary action does not enhance his right of access under the Open Records Act. This office has, on multiple occasions, affirmed correctional facilities' denials of inmate requests for video footage taken by surveillance cameras based on KRS 197.025(1) and the potential threat to institutional security disclosure might pose. See, e.g., 04-ORD-017 (enclosed) and authorities cited therein. So, too, we have determined that, pursuant to KRS 197.025(2), inmate requesters may be denied access to records that do not "contain[] a specific reference to them." See, e.g. 04-ORD-071 (enclosed) and authorities cited therein. We therefore find no error in KSR's denial of Mr. Pasha's request for the videotape and photographs relating to the March 3 incident.
With respect to the disciplinary report generated after the incident that resulted in his placement in administrative segregation, KSR advises that because he had been placed in administrative segregation on several occasions, it initially required additional information from Mr. Pasha to identify the record he sought. Given these facts, we believe KSR's request for clarification was proper. The existence of multiple responsive disciplinary reports rendered Mr. Pasha's request "[in]adequate for a reasonable person to ascertain the nature and scope of [his] open records request."
Com. v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). We find no error in KSR's request that Mr. Pasha provide additional information, to wit, the date of the incident that resulted in the placement in administrative segregation about which he inquired.
Nor do we find any error in KSR's reliance on KRS 61.878(1)(i) and (j) to deny Mr. Pasha access to the disciplinary report while his appeal to the warden was pending. As noted, Kentucky's courts have recognized that a requester's purpose and identity have no bearing on the right of access to a public record. Whatever his entitlement under Corrections Policy and Procedure 15.6IIC(4)(b)(3), 5 Mr. Pasha is not entitled, under the Open Records Act , to a record generated prior to final disposition of a disciplinary action, including a decision to impose no discipline, 6 since "piecemeal disclosure along the path of the decision-making process is not mandatory."
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013), citing
Ky. State Bd. Med. Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 956 (Ky. App. 1983) for the proposition that "a complaint filed with the medical licensure board, and records from the subsequent investigation, are exempt from disclosure until the final determination of the board regarding the license," also citing
Palmer v. Driggers, 60 S.W.3d 591, 596 (Ky. App. 2001) for the proposition that "a police officer's resignation during an ongoing investigation is considered a final action, since the effect of the resignation was to end the city's disciplinary proceedings against the officer, and thus the complaint and the investigative records lose their preliminary status and must be disclosed." At the time of Mr. Pasha's requests, KSR's position was legally sound. 7
However, KSR gives no indication that it treated the incident report, the existence of which it acknowledges, as a preliminary record protected by KRS 61.878(1)(i) and (j) at the time of Mr. Pasha's requests. KSR makes passing reference to the incident report in its supplemental response as one of "[t]he records that exist as requested by Pasha," but does not explain whether it was released or withheld, and, if it was withheld, the statutory basis for doing so. In light of this omission, we believe it is incumbent on KSR to supplement its original denial, pursuant to KRS 61.880(1), by advising Mr. Pasha on what statutory basis the incident report was withheld. Until it has done so, its statutory duties under the Open Records Act will not be fully discharged.
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 Mr. Pasha acknowledges that his requests were nearly identical and that the records to which he requested access consisted of the E.O.R., disciplinary report, incident report, accident report, photos, video footage, and nurse's notes relating to the March 3 incident.
2 KRS 61.872(4) directs a public agency to which an open records request is misdirected to notify the requester and provide him or her with the name and location of the actual custodian. KSR discharged this duty in full.
3 KSR explained that Mr. Pasha had "been placed in administrative segregation on a number of occasions" and that additional information was therefore required to identify the record sought.
4 KRS 61.878(1)(1) authorities 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[.]"
5 We trust that the Department of Corrections adheres to its internal policies and procedures by disclosing the appropriate records at the appropriate times to an inmate who is the subject of disciplinary action.
6 Palmer v. Driggers, 60 S.W.3d 521 (Ky. App. 2001).
7 As noted KSR states that Mr. Pasha "has already been given a copy of the Disciplinary Report, parts I and II (absent the 'Warden's Review' section), which he acknowledged on the forms." All of Mr. Pasha's open records requests were denied in their entirety. The redacted copy of the disciplinary report disclosed to Mr. Pasha must, therefore, have been disclosed under Corrections Policy and Procedure. Should Mr. Pasha request the disciplinary report under the Open Records Act, it will be incumbent on KSR to cite the exemption supporting partial nondisclosure and explain its application to the portion(s) of the record withheld.