Request By:
Roland Gazaway, # 135649
Casey Major
Amy Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Western Kentucky Correctional Complex ("WKCC") violated the Open Records Act in its disposition of inmate Roland Gazaway's open records request for case notes, transfer authorization forms, and a list of friends and relatives. For the reasons stated below, we find that WKCC's initial responses were deficient, but that it complied with the Act after being notified of the appeal by providing additional records, and by citing, and explaining, the exemptions in the Open Records Act that permitted redactions of the records.
By request dated July 20, 2017, inmate Roland Gazaway sought three types of records: (1) transfer forms (from his transfer from Eastern Kentucky Correctional Complex to Kentucky State Prison in 2016, and from Northpoint Training Center to WKCC in 2017); (2) a "friends and relatives list" from the Kentucky Offender Management System (KOMS); 1 and (3) all case notes from KOMS. The request was received by WKCC on July 21, 2017, and Casey Major, Offender Information Specialist, on behalf of WKCC responded by letter dated that same day. WKCC's response stated that the transfer forms could not be found in KOMS and that the request for case notes was denied as being exempt pursuant to KRS 61.878(1)(i) and (j). The request for the friends and relatives list was deferred until an answer from "Central Office" was received. In a, still timely, response on July 24, 2017, WKCC further responded that Mr. Gazaway could be provided the list of friends and relatives, "but not the addresses or birth dates." Mr. Gazaway appealed WKCC's response regarding his request, claiming that the transfer forms are maintained in KOMS and that he was aware of other instances where case notes had been provided to inmates. He also complained that the friends and relatives list should not have been redacted.
On appeal, Amy V. Barker, Assistant General Counsel, Justice & Public Safety Cabinet, responded on behalf of the Cabinet, and provided a memorandum from Wendy Higgins, Offender Records Supervisor, WKCC, August 7, 2017, to Mr. Gazaway, which contained explanations of why redactions had been made to the requested records.
Records redacted pursuant to KRS 197.025(1) . The agency's response (collectively Ms. Barker's letter and Ms. Higgins' memorandum) explained that, after the appeal was received, WKCC staff again reviewed the request. The two transfer requests were located in KOMS after further search by more experienced staff. 2 They were provided, upon payment of the cost, with redactions for security risks for conflicts and security threat group (STG) status pursuant to KRS 61.878(1)(l) 3 and KRS 197.025(1). Likewise, case notes were redacted, to some degree, for the same reason. KRS 197.025(1) states:
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.
In 16-0RD-070 we determined that a correctional facility was justified in redacting conflict and security threat group information prior to disclosing a transfer request form. As a basis for that decision, the agency had explained that conflict information is where inmates may have a conflict with other inmates, or staff, that can lead to harm to inmates or staff, even where the inmate is unaware of the conflict. Redacting conflict information is thus justified pursuant to KRS 197.025(1) and KRS 61.878(1)(l). Likewise, security threat group 4 (STG) information is similar to conflict information in constituting a security threat to inmates and/or correctional staff.
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. We have previously upheld the denial of records relating to both inmate conflicts and gang affiliation under KRS 197.025(1). 11-ORD-181, 16-ORD-023, and 16-ORD-070. Under the facts presented, we adopt the reasoning set forth in 16-ORD-070 supporting the redaction of conflict and STG information from transfer records. 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 that approach. ( See 04-ORD-017 and authorities cited therein.) Consistent with the foregoing precedent, we conclude that WKCC did not violate the Open Records Act in redacting conflict and STG information from the transfer forms on the basis of KRS 197.025(1).
Records redacted pursuant to KRS 61.878(1)(i) & (j) . The agency's response explained that redactions were made to case notes and recommended transfers (to other correctional facilities) that were not completed: "The redacted portions contain information that is preliminary and has not been adopted as part of final agency action since the transfer recommendations did not become completed transfers. KRS 61.878(l)(i) & (j)." The Attorney General has determined on more than one occasion that a preliminary recommendation for transfer does not have to be provided to a requester given its preliminary status and because it was not adopted by the DOC as part of a completed transfer. 15-ORD-103, 14-ORD-052, and 09-ORD-088.
KRS 61.878(1)(i) and (j) exempt from inspection, respectively, the following types of records:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In 16-ORD-025, we reviewed an appeal where case notes (such as the ones requested in this appeal) were withheld pursuant to KRS 61.878(1)(i) and (j). In that decision, we stated that "the issue is whether any final agency action necessarily stems from the case notes. See 10-ord-034." As in 16-ORD-025, the agency's response in this case explains that the recommended transfers to institutions were not completed and so were not adopted as part of final agency action, and that the case notes, likewise, contain information that was not adopted as part of final agency action.
The agency's response explains that the "[c]ase notes were also redacted where they were made to aid memory or as a short cut reference to action already taken and recorded in a separate record, e.g. notes about a disciplinary determination or program completion that is documented in the Kentucky Offender Management System (KOMS) by the other actual records." The agency's response explains that the notes were made simply to aid memory and were not later adopted by some final agency action. A disciplinary action is documented by the actual write up and decision that are maintained on separate disciplinary forms in KOMS. For program completion, a certificate of completion or other record documents the completion of the program, while the note just indicates that the program is completed or the certificate is in the inmate's KOMS file. See 16-0RD-025. It does not appear that these types of case notes form the basis for final agency action, but merely serve to aid employees' memories. Accordingly, we conclude that the notes retain their exempt status under KRS 61.878(1)(i) and (j).
Redaction pursuant to KRS 61.878(1)(a) . The agency's response explained that the "friends and relatives" list was offered upon payment of the cost with redactions of all but one address (one address was supplied by the inmate) . Ms. Barker explained that the addresses were redacted for reasons of privacy and security pursuant to KRS 61.878(l)(a), 61.878(1)(1), and 197.025(1). KRS 61.878(l)(a) authorizes an agency to deny disclosure of "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." The redacted addresses were provided by the individuals and not the inmate. They were also redacted for security reasons since, as explained in the agency's response, there is a risk of identity theft with personal information being provided to others.
In 06-ORD-120, we determined that the home address of a private citizen on an inmate's visitors log at Little Sandy Correctional Complex was properly redacted, under KRS 61.878(1)(a), as disclosure of that home address would have done little to further the public's right to know how the facility was performing and would not in any real way subject agency action to public scrutiny. We thus concluded that the privacy interest of the individual in her home address outweighed the public interest in disclosure. Accordingly, Little Sandy Correctional Complex properly denied the inmate's request for the home address of a person who had been listed on the inmate's visitation list, under authority of KRS 61.878(1)(a) . As in 06-ORD-120, release of the addresses on the friends and relatives list in this instance would provide little information to the public on the operation of WKCC, while the individuals on the list have a substantial interest in not having their home addresses disclosed to the public. We thus find no violation of the Open Records Act in redacting the addresses from the friends and relatives list provided to Mr. Gazaway.
Whether Appeal is Moot . The agency response stated that the majority of the case notes were sent to Mr. Gazaway without redaction, after payment was received, and opined that the appeal is moot as to those case notes. This office has previously determined 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 WKCC provided redacted records, this appeal is not moot and we were required to review WKCC's redactions, the reasons stated for the redactions, and the exemptions under which the redactions were made.
Although the initial responses to Mr. Gazaway were deficient, 5 the agency has provided the transfer forms, given sufficient explanation for why the redactions were made to the records provided, cited the specific exemptions in the Open Records Act that allow the redactions, and explained how those exemptions apply to the redactions. Accordingly, we find no substantive 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.
Footnotes
Footnotes
1 KOMS is the electronic database where Kentucky inmate information and records are stored.
2 Based upon the record provided, we are unable to determine whether WKCC's failure to find the transfer requests during its initial search constituted a failure to conduct a search that would have been reasonably calculated to locate the records. Therefore, we cannot find a procedural violation on that account.
3 KRS 61.878(1)(l) exempts from the Open Records Act: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
4 Security Threat Group (STG) is a formal or informal group of prison inmates. They are basically the prison gangs. Law enforcement officials use the term Security Threat Group to refer such gangs in order to take away the recognition that the term "gang" connotes. STGs pose threat to the safety of prison officials and other inmates." https://definitions.uslegal.com/s/security-threat-group-stg
5 The two responses on July 21st and 24th were deficient in that they did not provide the transfer forms; did not explain why the addresses and birthdates were redacted from the list of friends and relatives; and did not cite all of the specific exemptions in KRS 61.878(1) for the redactions.