Request By:
Chris Hawkins, # 103061
Ms. Beth Harper
Amy V. Barker, Esq.
Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Little Sandy Correctional Complex (LSCC) violated the Open Records Act in its disposition of inmate Chris Hawkins' February 23, 2017, request for a "memo from internal affairs Capt. @ LLCC to UA Ernie Entrican dated 7/17/13 recommending my placement in Permenant [sic] Pc [protective custody] " and "Pre-Parole Prog[r]ess Forms from my last (2) Parole hearings." For the reasons stated below, we find no violation of the Act.
On February 27, 2017, Beth Harper of the Records Department responded to these items of Mr. Hawkins' request as follows:
(1) I have enclosed a copy of the memo requested. However some things in the memo have been redacted because it has been determined that the information would constitute a threat to the security of other inmates, the institution or institutional staff, and cannot be provided. The Department makes decisions concerning security risks under authority of KRS 197.025 and KRS 61.878(1)(1). . . .
(2) The request for [t]he Pre Parole Progress Report is denied. The Pre Parole Progress Report is a preliminary internal memorandum containing opinions, observations, and recommendations, which are not incorporated into or reflect final agency action and is exempt from disclosure pursuant to KRS 61.878(1)(i) and (j). The report also contains information from the PSI that is gathered by probation and parole officers and is exempt pursuant to KRS 61.878(1)(1) and 439.510.
Mr. Hawkins' appeal was received in this office on March 3, 2017. He argues that the memo should not have been redacted because he knows its contents and has been given a copy before, and that he should be allowed to see the pre-parole progress report because he believes it is not accurate.
The redacted portion of the memo recommending long-term protective custody appears to describe the circumstances surrounding an assault committed against Mr. Hawkins after he helped retrieve information from an inmate of another facility regarding a cold murder case. On March 13, 2017, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of LSCC. With regard to the redactions, she explains:
The risk is not that inmate Hawkins may learn the contents of the memo, but that other inmates may learn the contents. It would not be surprising if Hawkins is not aware of some if not all of the contents because of his involvement in the situation. The information in the memo puts inmate Hawkins at risk of attack by other inmates. Violence between inmates puts staff and other inmates at risk at the institution. . . . Inmate theft of property of other inmates cannot be eliminated in a prison. He has been provided enough of the memo that he may reference it to staff in the manner he indicates is necessary for them to be able to identify it and use it as needed for his classification or other purpose.
A memorandum from Deputy Warden Danny McGraw confirms the risks alluded to:
Once [the memo] is released, the institution cannot be certain that it will not be obtained by other inmates. If other inmates become aware of the contents of the memo, it would put Mr. Hawkins at greater risk of attack as well as staff who have to respond to violence and potentially other inmates who become involved or are in the vicinity. The redactions were made to help alleviate this risk to inmates and staff. Even if the memo has been provided in the past as Mr. Hawkins states, it does not lessen the risk currently to have the memo on the yard at this institution.
KRS 197.025(1) 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.
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." 96-ORD-179. Under the facts presented, we find that the facility has articulated a credible basis for withholding this information in the interest of security.
In previous appeals, we have declined to substitute our judgment for that of the facility or the Department of Corrections, and the present appeal presents no reason to depart from this approach. ( See 04-ORD-017 and authorities cited therein.) Consistent with the foregoing precedent, we conclude that LSCC did not violate the Open Records Act in redacting this information from the memo on the basis of KRS 197.025(1).
With regard to the pre-parole progress report ("PPPR"), we observed in OAG 92-125 that this record "contains the caseworker's opinions in such areas as staff interaction, psychological and psychiatric condition, medical condition, and work performance" and "may also include an inmate's formal psychological evaluation." It "is a preliminary document containing opinions, observations, and recommendations . . . [which] is purely advisory and is one of several documents submitted to the Parole Board for its consideration." Unless adopted as the basis of the Board's final action, it is exempt from disclosure under KRS 61.878(1)(j), which applies to "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." 14-ORD-150; 12-ORD-230.
The facility represents that Mr. Hawkins' PPPR was not adopted in this case:
The Parole Board indicated the reasons for its 2014 decision and did not adopt the report or information in it as part of its decision. . . . The Parole Board's decision in 2016 was substantially similar to its 2014 decision and did not adopt the report or information in it as part of its decision.
Based on this representation and our review of the two decisions of the Board, we find that the PPPR retains its character as a preliminary document under KRS 61.878(1)(j). 1 Accordingly, we find no violation of the Open Records Act.
A party aggrieved by this decision may appeal it 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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