Request By:
Carlos Thurman, # 112192
Ms. Teresa Peters
Oran S. McFarlan, III, 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 the Kentucky State Penitentiary (KSP) violated the Open Records Act in its disposition of inmate Carlos Thurman's April 25, 2017, request for "any and all reports, documents, statements, recordings, names, dates and times of any interviews conducted by the Internal Affairs p[er]taining to the investigation that I am in administrative segregation for from 4-1-17 to 4-27-17." For the reasons stated below, we find no violation of the Act.
Mr. Thurman's request was received on April 27, 2017. On May 3, 2017, Teresa Peters responded for KSP: "Your request has been denied due to being preliminary. Under KRS 61.878(1) ((i) and (j), the Department may deny a request for notes, preliminary drafts, or preliminary documents containing opinions, observations, and recommendations that are not incorporated into or do not reflect final agency action." Mr. Thurman's appeal was received in this office on May 11, 2017.
On May 17, 2017, Ms. Peters wrote a memorandum to Mr. Thurman stating that the disciplinary report had been finalized:
As the disciplinary report serves as a summary of the investigation, we are providing you with a copy of part 1 (2 pages) and part 2 (3 pages) for a total of five (5) pages at this time.
Per Internal Affairs James Beavers all other reports completed during this investigation are exempt from disclosure as they contain confidential informants and is therefore denied due to security exemptions. The Department has determined that the disclosure of these confidential reports would constitute a threat to the security of inmates, the institution, institutional staff, or others and cannot be provided pursuant to KRS 197.025(1) and KRS 61.878(1)(l).
In addition, attorney Oran S. McFarlan, III, Justice and Public Safety Cabinet, responded to the appeal on behalf of KSP on May 19, 2017.
Mr. McFarlan argues, correctly, that with regard to the disciplinary report this appeal is moot, as those records have been provided. 40 KAR 1:030, Section 6. Insofar as Mr. Thurman requested "names, dates and times of any interviews, " Mr. McFarlan rightly asserts that KSP need not honor a request for information. Requests for information, as opposed to requests for records, are not within the scope of the Open Records Act. ( See 13-ORD-109 and authorities cited therein.)
As to the investigative report on which the disciplinary report was based, KSP cites security concerns under KRS 197.025(1). That subsection 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.
Mr. McFarlan argues as follows:
The confidential report was prepared using information obtained from a confidential informant and revealing the identity or other information about this informant would constitute a threat to the informant's safety as well as institutional security. An investigation of this nature relies on confidentiality of sources, techniques, and methods. It also relies on the cooperation of sources, both inmate and non-inmate. Simply put, source disclosure lessens cooperation and may cause violence, and thus denying Mr. Thurman's request for the confidential report is justified under the security exemption.
In 17-ORD-060, we found that the potential risk to the safety of an inmate who had assisted with an investigation justified the nondisclosure, even to that inmate himself, of related information in a memorandum. A report of an investigation employing a confidential informant, a fortiori , would create a risk to the safety of that informant if disclosed to the inmate who was the target of that investigation.
Regarding Mr. Thurman's request for "recordings, " Mr. McFarlan states:
To the extent that Mr. Thurman's records request can be seen as a request for recorded telephone calls, the disclosure of such recordings would also constitute a security risk. . .. Kentucky Corrections Policies and Procedures 16.3(II)(C) provides that "[a]n inmate telephone call may be monitored on a random basis or if there is reason to believe the telephone privilege is being abused in a manner that is in violation of law or detrimental to the security of the institution by providing a means by which inmates could learn which phone calls are monitored.
He notes that this office has accepted this rationale in upholding the application of the security exemption to inmate telephone records on previous occasions. See 15-ORD-030; 11-ORD-170; 07-ORD-182.
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, and in light of prior decisions, we find that the facility has articulated a credible basis for withholding these records 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. 04-ORD-017. Consistent with the foregoing precedent, we conclude that KSP did not violate 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.