Request By:
Nashawn Tyus, # 182811
Ms. Tammy Skinner
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 the Eastern Kentucky Correctional Complex (EKCC) violated the Open Records Act in its disposition of inmate Nashawn Tyus' September 6, 2017, request for "the transcript recorder of the PREA investigation on 8-21-17 and any and all physical evidence, photo copies, e-mail, reports, EOR's and investigative reports." For the reasons stated below, we find no violation of the Act.
Mr. Tyus' request was received on September 8, 2017. On September 14, 2017, Offender Information Specialist Tammy Skinner responded for EKCC, in pertinent part:
I forwarded your response [ sic ] to Lt. Donald Lewis, PREA Compliance Manager and custodian of the 6 pages of documents responsive to this request. The following documents are being provided:
Summary of Stevens -- Tyus PREA investigation (1 page)
Inmate Nashawn Tyus # 182811 statement (2 pages)
PREA Investigation Summary (3 pages)
Lt. Lewis has advised there were no photo copies or emails responsive to this request.
. . . .
Additionally, you have requested a copy of an EOR pertaining to this situation and this portion of your request is denied based on the following reason:
It has been determined by the Department that records you request 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)(l). . . .
Mr. Tyus' appeal was received in this office on September 19, 2017.
On October 4, 2017, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of EKCC. She advises as follows:
Several PREA investigation documents with redactions were provided to inmate Tyus with the response. Redactions were made to remove identifying information concerning the author of the letter as a security risk as explained below.
After receipt of the appeal, the investigation records were again reviewed. The final PREA investigation report with attachments was still being prepared when the request was received. It has been reviewed and is being offered upon payment of the costs for copies with redactions being made for identifying information for the author of the letter that began the investigation as a security risk pursuant to KRS 61.878(1)(l) and 197.025(1). Allowing the identity to become known at the institution would put staff and inmates at risk of harm because of the potential of an attack or other retaliation.
Included in EKCC's response is a memorandum from Lt. Donald Lewis dated October 2, 2017, in which he authorizes the EOR (now called an "Incident Report Summary") and partial transcripts/summaries made from witness interviews to be released to Mr. Tyus with the same redaction of "identifying information of the letter's author." Further redactions to the PREA report have also been made pursuant to KRS 197.025(1) for "information concerning the view and availability of security cameras and details of the review of the video footage at the institution."
To the extent that records requested were never created, we find no violation of the Open Records Act. 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.
We next address the security concerns underlying the redaction of identifying information for the author of the letter that initiated the PREA investigation. 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.
EKCC argues that "[a]n investigatory program inside a prison relies upon the cooperation of sources--some inmate, some non-inmate--to succeed," and "[i]f investigators were required to inform sources that their words would be subject to disclosure to inmates, it is a certainty that sources would be less apt to cooperate." Furthermore, the facility contends that "[r]evealing names of witnesses who corroborated or failed to corroborate an inmate's claims would also sow the seeds of discord among residents [and] also trigger conflicts and even violence." (Internal quotation marks omitted.)
In 17-ORD-111, we ruled that disclosure of a report of an investigation employing a confidential informant would create a risk to the safety of that informant within the inmate population. Similarly, 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. Furthermore, in 12-ORD-123, we upheld the redaction of witness statements in connection with a PREA investigation under KRS 197.025(1) on grounds that their release could lead to discord among inmates. The situation described in the present appeal is analogous to all three of these precedents.
Regarding the redaction of "information concerning the view and availability of security cameras and details of the review of the video footage, " we have frequently upheld the denial of security camera footage itself pursuant to KRS 197.025(1), on grounds that the footage would reveal "methods or practices used to obtain the video, the areas of observation and blind spots for the cameras. " 15-ORD-121; see also 15-ORD-089; 16-ORD-042. To the extent that written information about the security camera footage would disclose the same information, it is reasonable to conclude that the same security concerns would apply.
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 making these redactions 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 find that EKCC's redactions 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.