Opinion
Opinion By: Andy Beshear,Attorney General;Taylor Payne,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Reformatory ("KSR") violated the Open Records Act by withholding a copy of an Extraordinary Occurrence Report ("EOR") in response to an open records request by an inmate on the basis that disclosure of the EOR would compromise the security of the institution. We conclude that KSR did not violate the Act by withholding the EOR.
On August 14, 2016, Jeremy Owens, an inmate at KSR, requested "[a]ll detention orders and protective custody hearing [ sic ] between the dates of May 2013 and September 2014. And one copy of any EOR from June 2014" from the Open Records Office at KSR. On August 19, 2016, Kathy Garrison, Offender Information Specialist for KSR, replied to Mr. Owens stating that "KSR was withholding the requested copy of an EOR from June 2014 under the security exemption. " KSR claimed that furnishing the EOR to Mr. Owens would disclose the identities of confidential informants. Thereafter, Mr. Owens appealed to this office requesting a finding that KSR violated the Open Records Act. On appeal, Mr. Owens argues that he is entitled to the EOR because it specifically references him.
In response to Mr. Owens's appeal, KSR informs this office that the EOR was generated on June 6, 2014 after Mr. Owens "was discovered injured in his cell, with blood on his face and clothing." KSR initiated an investigation when Mr. Owens claimed to have been assaulted by two unknown inmates. KSR asserts that the EOR "contains a minute by minute account of this investigation and contains security information details and methods of investigation that would compromise the future security of the institution if disclosed."
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.
This provision is incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), which excludes from application of the Act, "[p]ublic records of information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
This office has previously recognized that KRS 197.025(1) vests the Commissioner of the Department of Corrections (DOC) or designee with "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. We have held that the Open Records Act requires the Commissioner or designee to provide "a brief explanation as to how release of the requested records would constitute a threat to the institution or institutional staff or inmates. " 06-ORD-176 (citing 96-ORD-182). However, this office will not substitute our judgment for that of the Commissioner or designee, and instead, will defer to the agencies. 01-ORD-224.
In 16-ORD-071, this office addressed an open records appeal initiated by an inmate who was denied access to an EOR by KSR pursuant to 197.025(1). In response to that appeal, KSR explained that the requested EOR "'contain[ed] 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 investigation that would harm the institution's ability to control contraband and detect future violations or crimes.'" 16-ORD-071. We determined this to be a credible basis for denying the inmate access to the EOR under the security exemption of KRS 197.025(1) and concluded that KSR had not violated the Open Records Act. Id.
Here, KSR informs us that the June 2014 EOR requested by Mr. Owens similarly includes a minute by minute account of its investigation of Mr. Owens's injuries and contains security information details and methods of its investigation. Based on this information, KSR determined that release of the EOR "would compromise the future security of the institution . . . ." Guided by our decision in 16-ORD-071, here we find that KSR has articulated a credible basis for denying Mr. Owens's request for the June 2014 EOR pursuant to the security exemption established in KRS 197.025(1). Accordingly, this office will not substitute its judgment for that of KSR.
Mr. Owens argues in his appeal that he is entitled to the June 2014 EOR in spite of KRS 197.025(1) because the record contains a specific reference to him. He solely relies on KRS 197.025(2), which states, in part, that the DOC "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." Mr. Owens has erroneously interpreted KRS 197.025(2) as entitling him to any record in which he is specifically referenced. Rather, KRS 197.025(2) further restricts Mr. Owens's access to facility records to only those records in which he is specifically referenced. In no way does the statute mandate production of documents in spite of other exemptions provided for facility records. Specific reference to Mr. Owens in a record only satisfies the burden of KRS 197.025(2), but such a record may still be withheld if it will pose a threat to security of the facility. Here, Mr. Owens has provided nothing to this office to refute KSR's reasons for determining that providing him with the EOR would constitute a security threat.
In summary, KSR articulated a credible basis for withholding the June 2014 EOR in the interest of security, which Mr. Owens failed to refute. Contrary to Mr. Owens's position, KRS 197.025(2) does not entitle Mr. Owens to any facility record which references him. Accordingly, KSR did not violate the Open Records Act by withholding a copy of the June 2014 EOR.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.