Opinion
Opinion By: Andy Beshear, Attorney General; Gordon R. Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Kentucky State Penitentiary ("KSP") violated the Open Records Act in its disposition of inmate Leslie Jester's open records request for photographs and reports regarding a fight he had with another inmate. For the reasons stated below, we find that KSP did not violate the Act.
By request dated July 26, 2017, Appellant asked to receive copies of "All photos of my injuries & stab wounds, the knife used, the write ups and Incident Reports filed on the (06-10-17) fight between me & inmate [name] on 3 C/H-14."
Request for Photographs . Catherine Weicht, staff member at KSP, denied the request for the photographs on the basis that their disclosure would constitute a risk to the security of inmates, the institution, institutional staff, or others. She cited KRS 197.025(1) 1, as incorporated into the Open Records Act by KRS 61.878(1)(l), as the statutory basis for the denial.
On appeal, Amy V. Barker, Deputy General Counsel, Justice and Public Safety Cabinet, provided additional information and explanation as to why the photographs could not be released. Ms. Barker's letter contained an affidavit from Skyla Grief, Deputy Warden, KSP, who supervises open records activities at the facility. Ms. Grief explained that the photograph of the knife was denied [on the basis of KRS 197.025(1)] because it "would be a security risk to allow a photo of the knife to be released given the graphic nature of the incident and the potential that it would be shared with other inmates within the institution." Ms. Grief also stated that the photo of the knife does not contain a specific reference to Mr. Jester and does not have to be provided, pursuant to KRS 197.025(2) 2 as incorporated into the Open Records Act through KRS 61.878(1)(l). 3 Ms. Barker further explained:
KRS 197.025(2) expressly authorizes correctional facilities like [KSP] to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. " 08-0RD-271, p. 3. This statute in conjunction with KRS 61.878(1)(l) clearly shows that the Department of Corrections is not obligated to provide records when they do not contain a specific reference to the inmate who requests the record. See 17-ORD-119 [other citations omitted]."
On the basis of KRS 197.025(2), we agree that photographs of the knife are exempt from production under the Open Records Act as they do not contain a specific reference to Mr. Jester. 03-ORD-073, 17-ORD-119 (other citations omitted). This Office has consistently interpreted KRS 197.025(2) as requiring a reference by name. 03-ORD-150; 09-ORD-057. We concur that the photographs of the knife were properly withheld under KRS 197.025(1), and we more fully explain that exemption below.
Regarding the photographs of the inmate's injuries, Ms. Grief's affidavit states that such photos were not taken and do not exist. Ms. Barker cited past decisions of this Office in explaining that a "public agency cannot afford a requester access to a record that it does not have or which does not exist. 17-ORD-018, 15-ORD-018, 09-ORD-129, 07-ORD-190, 06-ORD-040, 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150, 04-ORD-43, 09-ORD-088, 14-ORD-072, 14-ORD-094, 15-ORD-046. An agency is not required to 'prove a negative' when explaining that it does not have a record or that it does not exist. 11-ORD-209, p. 1 , 5; 09-0RD-194." As the photos do not exist, and pursuant to the authorities cited by Ms. Barker, we concur that KSP properly denied access to the (nonexistent) photographs.
Request for Write-ups . Ms. Weicht denied Mr. Jester's request for write-ups (disciplinary reports) regarding his fight with another inmate on the basis that the records did not contain a specific reference to Mr. Jester and were thus denied under the authority of KRS 197.025(2). In Ms. Grief's affidavit, she explained that a search of another inmate's file contained a reference to Mr. Jester in a disciplinary report. As that disciplinary report contained a reference to Mr. Jester, it could be disclosed to him, but with redactions. Ms. Grief explained the basis for the redactions:
Redactions of the disciplinary report are necessary due to the security risk of providing information concerning one inmate to another inmate and the inherent risks of this. The institution uses care not to release any unnecessary information about one inmate to another so an inmate does not take issue with another inmate being allowed to possess information about the other inmate. It is a particular concern in this case given a prior history of harm by the inmate at issue against other inmates, The institution seeks to reduce potential future harm to inmates and staff by limiting what is released from the disciplinary report to portions that are directly related to inmate Jester, the fight, and his injuries.
Ms. Barker clarified that the security concerns cited by Ms. Greif were based on KRS 197.025(1) and cited numerous decisions of this Office which recognized that the discretion afforded the Commissioner (and his designees at the correctional facilities) in KRS 197.025(1) is broad, and that the Office of the Attorney General should not "substitute its judgment for that of the correctional facility or the Department of Corrections." 08-ORD-148, p. 4., see also, 16-ORD-267, and 03-ORD-190 (other citations omitted). Pursuant to KRS 197.025(1), we defer to the judgment of the correctional facility in the determination that the disciplinary report may be appropriately redacted before release to Mr. Jester as release of the disciplinary reports could constitute a threat to the security of an inmate, correctional staff, the institution, or another person.
Incident Reports . Ms. Grief stated that responsive incident reports were located, as part of an Extraordinary Occurrence Report (EOR). As the initial response to Mr. Jester did not contain this information regarding the incident reports, we must assume that these reports were found after receipt of Mr. Jester's open records appeal. The initial response did not indicate how thorough a search was conducted for the incident reports. In 95-ORD-96, this office was asked to determine whether an agency's search for public records was adequate and established a standard by which to measure the adequacy of the agency's search. At page 7 of that decision, we observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny , above at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records.
Id.
The record does not disclose what efforts were taken to find the incident reports in response to the initial records request, nor what efforts were used that were successful in finding the incident reports after this appeal was filed. We cannot determine whether KSP expended "reasonable efforts to identify and locate the requested records" in the initial search and thus we cannot find that KSP violated the Open Records Act in failing to find the incident reports when it first searched for those records.
Ms. Grief stated that the EOR (containing the incident reports mentioning Mr. Jester) and all associated reports/attachments were being withheld because they contain significant and detailed security response information as well as the information . . . concerning another inmate. It would be a security risk to the institution to release the EOR." Ms. Barker expounded further upon the reasons for withholding the EOR.
The EOR and its reports contain detailed security response information and information concerning the other inmate that would be a security risk to release pursuant to KRS 61.878(1 )(l) and 197.025(1). It contains "a step by step, minute by minute account of the actions taken by [institutional] security personnel after the actions of the inmates were discovered." See 13-ORD-169 p.3. The EOR requested involves the security response to an inmate fight. The EOR and its reports contain information about which staff members responded to the incident at issue as well as how they responded and their assignments. Releasing this kind of information to an inmate would create a security risk by revealing how staff responds to such incidents and the security details. This would threaten the security of correctional staff and the institution as well as harming the institution's ability to react to and investigate future rule violations or crimes. The institution also wants to protect inmate Jester and any officers who responded to the incident from the threat of future retaliation. See previous security risk argument. See 17-0RD-097, 16-ORD-247, 16-ORD-232, 16-ORD-071, 10-ORD-180, 10-ORD-099, 10-ORD-056, 07-ORD-039. The Attorney General should defer to the reasonable exercise of discretion by the Department of Corrections in this matter.
As set forth above, in the explanation regarding the authority of KSP to withhold photographs of the knife, we defer to the judgment of the correctional facility in matters regarding security, and the explanations provided by Ms. Grief and Ms. Barker provide a reasonable explanation as to why we should do so in regards to the incident reports. We find no violations of the Open Records Act in KSP's decision not to release the incident reports to Mr. Jester.
KSP properly relied upon KRS 197.025(1) to withhold, or redact, records where the release of those records would create a security risk. KSP also properly relied upon KRS 197.025(2) to deny copies of the photographs of the knife as those photographs did not contain a specific reference to requester. KSP also complied with the Open Records Act by determining that responsive records (photographs of the inmate's injuries) did not exist, and affirmatively so advising the requester.
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 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."
2 KRS 197.025(2) states: "KRS 61.870 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual."
3 KRS 197.025(1) and (2) are incorporated into the Open Records Act through KRS 61.878(1)(l) which exempts: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."