Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Summary : Kentucky State Penitentiary properly relied upon KRS 197.025(1), incorporated into the Kentucky Open Records Act by operation of KRS 61.878(1)(l), to deny inmate's request for conflict sheets.
Open Records Decision
Brandon Bruin initiated this appeal by letter dated October 4, 2017. Mr. Bruin challenged the denial by the Kentucky State Penitentiary ("KSP") of an August 29, 2017 request for documents. That request was for a "[c]opy of each 'conflict sheet' on all current conflicts with inmates whether incarcerated or not pursuant to OAG 91-136 (if any weren't approved by administration 1-Copy of the forms indicating why)." In his request for appeal, Mr. Bruin defended his request stating "I should be afforded a copy of any and all conflicts as for I am the initiator of every conflict on file."
KSP issued a response to the request on September 14, 2017, by KSP Open Records Coordinator Catherine Weicht. Ms. Weicht explained that the request was denied pursuant to KRS 197.025(1) and KRS 61.878(1)(l). She stated specifically that: "The Department has determined that the disclosure of any conflict information would constitute a threat to the security of inmates, the institution, institutional staff, or others with consequences that could put their safety in jeopardy and cannot be provided pursuant to KRS 197.025(1) and KRS 61.878(1)(l)."
On October 25, 2017, Oran S. McFarlan, III, attorney for the Justice and Public Safety Cabinet, submitted a response to Mr. Bruin's appeal on behalf of KSP. The response shed further light on the reason for the denial. The response noted that: "Here, the security risk is clear. An inmate can have a conflict with another inmate or staff and not be aware of the conflict. Having this information available can cause inmates to try to determine who is the conflict, which can lead to fights or harm to other inmates or staff. Corrections does not release Conflict Notification Forms prepared by staff to inmates or the public given this issue and the risks involved."
Mr. McFarlan also noted that it appeared from the wording of the request that Mr. Bruin was requesting conflict sheets involving every inmate in the Department. He clarified that, to that extent, the denial would be based on the fact that there is no specific reference to Mr. Bruin in those documents as required by KRS 197.025(2).
Mr. Bruin submits that OAG 91-136 supports his argument that he is entitled to the release of the conflict sheets. Though Mr. Bruin requests "all conflict sheets, " it appears that he claims a right to access the conflict sheets because they contain a specific reference to him in the documents. However, the decision does not support his argument. OAG 91-136 demonstrates that access to any record continues to be subject to the security concerns of the commissioner.
In OAG 91-136, an inmate at the Northpoint Training Center ("NTC") made a request for a copy of a conflict sheet. NTC provided a redacted copy of a conflict sheet pursuant to an institutional policy that allowed the release of "conflict sheets to inmates whose names appear at the top of the page, since there is no potential for violence if the requester is the inmate who reported the conflict." OAG 91-136, pg.1. NTC later retrieved the document after discovering the inmates' name was placed on the conflict sheet in error. The Attorney General found that the decision to retrieve the document was proper. We found that "[a] conflict sheet is prepared when an inmate reports that he has had an altercation with another inmate, or, in this case, that he was the victim of an assault. Clearly, release of such a document would 'constitute a threat to the security of the inmate' in that it might lead to retaliation." OAG 91-136, pg. 2.
The NTC policy mentioned in OAG 91-136 is similar to KRS 197.025(2), which provides as follows:
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.
The Attorney General has long interpreted the provision to mean that only documents mentioning the inmate by name need be provided. See, e.g. , 99-ORD-157. Therefore, KRS 197.025(2) establishes a threshold requirement for the release of a record. Based on that provision, KSP properly denied Mr. Bruin access to "all conflicts with inmates whether incarcerated or not." The department is not required to comply with a request for any conflict sheet that does not contain a specific reference Mr. Bruin.
KSP properly relied upon KRS 197.025(1) to withhold the requested conflict sheets that may contain a specific reference to Mr. Bruin. By enacting KRS 197.025(1) 1, "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 03-ORD-190. The Attorney General recognizes that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3; 03-ORD-190. , p. 2; 03-ORD-190. Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 03-ORD-190.
KRS 197.025(2) does not create an exception to the security concerns that shall preclude access to records. We have found that KRS 197.025(1) gives the commissioner of the department broad authority. That authority includes the discretion to deny access to any record if the disclosure is deemed to constitute a threat to security, even if the record contains a specific reference to the individual making the request. Accordingly, we conclude that the KSP properly relied upon KRS 197.025(1) to deny Mr. Bruin's request after finding that the release would constitute a threat to security for the inmate, other inmates, and correctional staff.
Mr. Bruin made the additional request that "if any request weren't approved by the administration 1-Copy of the forms indicating why." Mr. Bruin attached a copy of the September 14, 2017 response from the Open Records Coordinator to his appeal. The response stated in sufficient detail that KRS 197.025(1) and KRS 61.878(1)(l) were the administrations grounds for denying his request for conflict sheets. Based upon the facts as presented in this appeal, the memorandum is a document that sufficiently fits the description of the record Mr. Bruin requested. KSP has complied with the requirements 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 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."