Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Luther Luckett Correctional Complex (LLCC) violated the Open Records Act in redacting portions of case file notes. We affirm LLCC's redactions pursuant to KRS 197.025(1) but find that LLCC committed procedural violations in both the initial response and upon appeal by not explaining how the cited exceptions applied to the records requested.
Christopher Hawkins, an inmate at the Luther Luckett Correctional Complex (LLCC), submitted an Open Records request, dated October 18, 2016, wherein he requested: "1.) Case Notes from 2-6-16 through the date/time disposition of this request. 2.) disciplinary report (Parts I and II) that was received by any inmate @ LLCC for stealing my property on 9-16-16 [and] 3.) EOR's that are relating to any inmate @ LLCC stealing my property on 9-16-16 (sic)."
LLCC timely responded to Mr. Hawkins' request on October 20, 2016, denying the requests for the following reasons: "1. Case Notes are exempt pursuant to KRS 61.878(l)(i) and (j) as notes, preliminary drafts, and correspondence with private individuals containing opinion and recommendations [and] 2. The records you request concerning disciplinary reports and EOR's do not contain a specific reference to you and the records are exempt from disclosure to you under KRS 61.878(1)(l) and KRS 197.025(1)(2) (sic)." Mr. Hawkins filed his appeal of that response on October 24, 2016.
On November 2, 2016, after Mr. Hawkins instituted this appeal, Wade Percle, Offender Information Specialist, LLCC, supplemented the initial response to Mr. Hawkins by providing five pages of redacted case notes. The response explained that the redactions were made in the interest of the safety and security of the institution and to remove any opinions or preliminary recommendations that are exempt from disclosure, pursuant to KRS 197.025(1) and KRS 61.878(1)(j) and (l). 1 That response stated that the EORs and Disciplinary Report Forms were still being denied as a supplemental search determined that there were no responsive records.
On November 4, 2016, Oram S. McFarlan, III, attorney, Justice & Public Safety Cabinet, responded to this appeal on behalf of LLCC. Mr. McFarlan explained that LLCC relied on KRS 61.878(1)(j) and (l) and KRS 197.025(1) in not providing a complete set of unredacted case notes. KRS 197.025(1) 2 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." Citing a line of prior decisions by this office, Mr. McFarlan correctly observed that the Attorney General has consistently recognized the broad discretion afforded the Commissioner/his designee by this provision. While the "security exemption" under KRS 197.025(1) affords the a correctional facility broad discretion to deny inmates access to records deemed a security threat, such discretion is "not unfettered." 96-ORD-179. Rather, we have historically based our deference to the agency's judgment upon the reasoning articulated by the agency in its explanation of how the records pose a threat to security. In this instance, neither LLCC nor Mr. McFarlan gave an explanation of how the redacted materials constitute a security threat. This failure to explain how the exemption applies to the redacted materials constitutes a procedural violation. We are guided, in this appeal, by the principle that this office should not substitute its judgment for that of the correctional facility, and by examination of the redacted documents, provided in correspondence from Mr. Hawkins. Our review of those redactions confirms that they are consistent in nature and minor in scope. Based on examination of the redacted documents and giving due deference to the correctional agency's judgment regarding security issues, we affirm the redactions made in the case notes provided to Mr. Hawkins by LLCC.
We must also note that the supplemental response is at variance with the initial response which attempted to withhold the entire class of case notes as exempt as preliminary documents under KRS 61.878(1)(j) and (l). 3 While LLCC did not violate the Open Records Act in its ultimate disposition of Mr. Hawkins' request, the initial response constituted a procedural violation in that LLCC attempted to exempt all case notes rather than fulfilling its duty to conduct a review of the requested materials, as was done on appeal, that would have determined that the bulk of the notes were releasable. Further, there was no explanation as to how the records qualified under the preliminary exceptions (KRS 61.878(1)(i) and (j)) as claimed in the initial response and in Mr. McFarlan's letter on appeal. The agency failed to explain how the cited exceptions applied to the record withheld, as required by KRS 61.880(1). To this extent, LLCC's responses constituted a procedural violation of the Open Records Act. The procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. While we have determined that the redactions were proper under KRS 197.025(1), we also remind the agency that it has a duty to explain how an exception applies if that exception is claimed as a basis for withholding records.
In regards to the disciplinary reports and EORs requested by Mr. Hawkins, Wade Percle's response of November 2, 2016, states that a "supplementary search confirmed that there are no EORs or Disciplinary Report Forms responsive to your request." Obviously, 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.
In a footnote in his response, Mr. McFarlan requests that this office find this appeal to be moot as the redacted case notes have been provided. 40 KAR 1:030 Section 6 states, "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." In a 2009 open records decision involving the Cabinet for Health and Family Services, the Attorney General reminded the Cabinet that "unless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot. " 09-ORD-007, p.5. As LLCC redacted the case notes, we cannot find that all the requested records have been provided, and therefore we cannot find this appeal to be moot.
A party aggrieved by this decision may appeal it 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 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.
Footnotes
Footnotes