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 Little Sandy Correctional Complex (LSCC) violated the Open Records Act in its disposition of inmate Cedric Thompson's September 12, 2017, request for "a copy of all the CPP 14.7 sexual offense allegation reports against me under LSCC-2017-1875." For the reasons stated below, we find no violation of the Act.
Mr. Tyus' request was received on September 14, 2017. On September 19, 2017, Beth Harper, Records Department, responded for LSCC, stating: "Your request for a copy of the PREA [Prison Rape Elimination Act] reports [is] denied per KRS 61.872(4) this [sic] department does not have custody of the record requested. You will need to contact North Point Training Center to request copies of the reports." Ms. Harper provided the address of Northpoint Training Center. Mr. Thompson appealed to this office, stating that "the PREA investigation is available to the Adjustment Officer via KOMS," so that LSCC "can redact any information that is prohibited, and forward all pertinent information available."
On October 13, 2017, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of LSCC. She advises as follows:
A further review of the records [was] made after receipt of the appeal. It was determined that the LSCC PREA Compliance Manager did have access to the final PREA investigation report in the PREA section of KOMS. The final PREA investigation report with attachments was not completed and final when the request was received. [The final report] is being offered upon payment of the costs for copies with redactions being made for privacy and security reasons pursuant to KRS 61.878(1)(a), 61.878(1)(l), and 197.025(1). ? Any reference to another inmate, identifying information for another inmate, and hand written statements were redacted or withheld. Confidential information from the complaining inmate and other witnesses was redacted. In this type of sensitive investigation involving sexual issues, allowing an inmate's identity and sensitive factual statements to become known at the institution and having records available with that information on the yard would put inmates and staff at risk of harm because of the potential of exploitation or harm from other inmates.
LSCC states that a "medical assessment report of the complaining inmate" has been withheld both due to such identifying information and due to the inmate's privacy interest in his medical evaluation.
The same matters are addressed in the facility's October 12, 2017, response letter to Mr. Thompson, in which PREA Compliance Manager Paul Crouch adds: "An investigation of this nature relies on the cooperation of sources, both inmate and non-inmate. Source disclosure lessens cooperation and may cause violence. ? The prison is careful not to release information concerning one inmate to another inmate to prevent fights or retaliation for an inmate having records pertaining to another inmate. "
Regarding the security concerns underlying the redaction of identifying information and handwritten witness statements, 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.
In 17-ORD-211, we held that identifying information for the complaining witness in a PREA investigation could properly be redacted for security reasons under this subsection. Likewise, 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 of these precedents. In addition, we have examined the records in camera pursuant to KRS 61.880(2)(c) and agree that the "sensitive factual statements" and "confidential information" in the redacted material could reasonably have been deemed to pose a security risk if disclosed within the inmate population.
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 LSCC's ultimate disposition of this request did not violate the Open Records Act. 1
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 As an individual inmate's medical records would generally constitute personally identifiable information, we find that the nondisclosure of the medical assessment of another inmate was justified under KRS 197.025(1). Accordingly, we need not address the facility's argument under KRS 61.878(1)(a).