Opinion
Opinion By: Andy Beshear,Attorney General;Taylor Payne,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory (KSR) violated the Open Records Act in its disposition of inmate Chris Hawkins's January 19, 2017, request to inspect the following records: "(1) property inventory form from when I arrived @ KSR on 12-29-17 (2) Transfer authorization Form completed relating to my transfer to KSR from LLCC on 12-29-17 (3) case notes from 9/16/16 through 1/19/17." For the reasons that follow, we find that KSR complied with the Open Records Act in its disposition of Hawkins's open records request for the Property Inventory Form and the Transfer Authorization Form. Furthermore, KSR has rendered Hawkins's appeal in regards to the case notes moot by notifying this office that it will provide the case notes to Hawkins upon payment of the costs.
KSR responded to Hawkins's request on January 23, 2017. It provided a Property Inventory Form dated 12/29/16, rather than 12/29/17, since that date had not yet occurred. KSR provided Hawkins with the Transfer Authorization Form with redactions of "notes and preliminary comments that contained options, observations and recommendations that were not incorporated into final agency action by an actual transfer to a specific institution." KSR informed Hawkins that the redacted information also posed a security threat if disclosed and that the information was redacted pursuant to Kentucky Revised Statute (KRS) KRS 197.025(1) and KRS 61.878(1)(l). KSR denied Hawkins's request for the case notes from 9/9/16 through 1/19/17 on the basis that the documents were preliminary and could be withheld pursuant to KRS 61.878(1)(i) and (j). This appeal followed. 1
On appeal, Hawkins argues that KSR violated the Open Records Act in its disposition of his request. Specifically, he claims that his request sought the Property Inventory Form originated on the date he arrived at KSR, yet KSR provided a Property Inventory Form originated by another facility upon his transfer to KSR. Hawkins also argues that KSR improperly redacted information from the Transfer Authorization Form. Lastly, Hawkins argues that KSR improperly withheld the case notes.
In response to Hawkins's appeal, KSR states that it provided Hawkins with the 12/29/16 Property Inventory Form originated by another facility on the assumption that Hawkins sought that form and mistakenly referred to the form as being dated 12/29/17 because KSR does not possess a Property Inventory Form dated 12/29/17 since that date has not yet occurred. KSR further states that upon receipt of Hawkins's appeal it attempted to locate a Property Inventory Form originated by KSR on the date Hawkins arrived at KSR but could not locate any form. KSR explained this as likely resulting from Hawkins's arrival at KSR occurring after the property office was closed for the day. KSR further stated that the redactions made to the Transfer Authorization Form were necessary to prevent disclosure of information deemed to constitute a security threat. In particular, KSR noted that the redacted information reveals that Hawkins has a conflict with another person at the institution and is a member of a security threat group (ST(j). KSR argues that disclosure of the existence of a conflict could cause Hawkins to engage in behavior to ascertain the conflict that would pose a security threat. KSR additionally argues that disclosure of the STG could cause Hawkins to become a target or assist Hawkins in coercion with other members of his STG to pose a threat. Finally, KSR informed this office that it will provide the case notes requested by Hawkins upon payment of costs with redactions of the same information redacted from the Transfer Authorization Form.
With respect to the Property Inventory Form, KSR affirmatively stated that it does not possess such a form that was originated by KSR on the date Hawkins arrived at KSR. Because Hawkins provided an incorrect date in his request, in the alternative, KSR provided him with the only record in its possession that could possibly conform to his open records request. This office has routinely found that a public agency cannot afford a requester access to a record that does not exist. 17-ORD-022; 16-ORD-269; 04-ORD-043; 93-ORD-121. A public agency discharges its duty under the Open Records Act when it affirmatively states that a requested record does not exist. 17-ORD-022. The Attorney General is not under a duty to investigate whether a document exists that a public agency affirmatively states does not exist. 17-ORD-022. Since no allegations have been made by Hawkins to indicate that the Property Inventory Form Hawkins seeks actually exists, we affirm this portion of KSR's disposition on that basis.
With respect to the redactions made to the Transfer Authorization Form by KSR, KRS 197.025(1) states:
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.
KRS 197.025(1) is incorporated into the Open Records Act by way of KRS 61.878(1)(l). We have continually held that "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.'" 16-ORD-070 (quoting 96-ORD-179). We decline to substitute our judgment for that of the facility with respect to these determinations when the facility articulates a credible basis for the redaction. Id.
KSR refers this office to 16-ORD-070, in which we previously addressed an appeal filed by Hawkins alleging that the same redactions to a Transfer Authorization Form violated the Open Records Act. In 16-ORD-070, we held that an institution's concerns regarding inmate conflict and gang affiliation was a credible basis for redacting information of an inmate's conflict in the institution and his STG classification from the Transfer Authorization Form. Thus, we declined to second-guess the facility's judgment. Id. Our decision in 16-ORD-070 controls this issue and is attached hereto. In accordance with 16-ORD-070, we find that KSR has articulated a credible basis for invoking the security exemption under KRS 197.025(1) and affirm this portion of KSR's disposition of Hawkins's open records request.
Finally, we turn to the case notes withheld by KSR, which it now states that it will provide to Hawkins upon payment of copying costs. To the extent that KSR has agreed to provide all case notes sought by Hawkins, this issue raised on appeal is now moot. See 40 Kentucky Administrative Regulation 1:030, Section 6 (the Attorney General must decline to issue a decision if the requested records are made available to the complaining party after an open records appeal is initiated). However, we would stress that KSR must produce all of the case notes in its possession that Hawkins has requested, because KSR has not articulated any basis for withholding those case notes. Prior to production, KSR may redact the same information redacted from the Travel Authorization Form pursuant to the security exemption under KRS 197.025(1) and based on our reasoning in 16-ORD-070 and herein.
The parties herein 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.
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