Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in denying Chris Hawkins' April 23, 2019, request for "[Prison Rape Elimination Act ("PREA")] documentation related to my sexuality completed by UA Rachel Hughes and/or any KSP Staff on or after 4/22/19." Consistent with prior decisions by this office affirming denials of requests for PREA assessments under authority of KRS 197.025(1), incorporated into the Act by KRS 61.878(1)(l), the Attorney General affirms the agency's ultimate disposition of Mr. Hawkins' request.
KSP received Mr. Hawkins' request on April 24, 2019, and issued a timely written response per KRS 197.025(7) on May 1, 2019. KSP Open Records Coordinator Catherine Weicht stated, "Records pertaining to PREA complaints and investigations are confidential and exempt from disclosure pursuant to 28 CFR 115.61(b), KRS 61.878(1)(k), and CPP 14.7(j)." In his May 2, 2019, appeal, Mr. Hawkins argued that he asked for documentation consisting of questions that UA Rachel Hughes asked him, and the answers that he provided, as opposed to "complaints" or "investigations." Upon receiving notification of Mr. Hawkins' appeal, Staff Attorney Julie C. Foster, Justice and Public Safety Cabinet, responded on behalf of KSP, clarifying that Ms. Weicht misread Mr. Hawkins' request; he actually requested a PREA Risk Assessment.
In further support of the denial by KSP, Ms. Foster explained, "The assessment at issue was completed per Kentucky Corrections Policy and Procedure ("CPP") 14.7(F)(2), which states, 'A reassessment may occur at any time when warranted.'" She further clarified that Mr. Hawkins asked for a copy of his "recent reassessment for risk of sexual victimization and abusiveness." The information contained in these screening reports is highly sensitive ( e.g. , sexual preferences, prior instances of sexual victimization or abuse, prior convictions for sex offenses, prior institutional discipline for sexually inappropriate behavior, prior instances of violent conduct, etc.). For this reason, CPP 14.7(F)(4) makes it clear that "dissemination of information related to and resulting from the assessment shall be controlled and limited to staff necessary to inform treatment plans and make security and management decisions regarding housing, beds, work, education and program assignments." Ms. Foster emphasized that CPP 14.7(F)(4) is required under CFR 28 § 115.41(i) ("The agency shall implement appropriate controls on the dissemination within the facility of responses to questions asked pursuant to this standard in order to ensure that sensitive information is not exploited to the inmate's detriment by staff or other inmates" ) and complies therewith.
Quoting the language of KRS 197.025(1), and citing prior Open Records Decisions, Ms. Foster correctly observed that the Attorney General's Office ("office") has consistently declined to substitute its judgment for that of the correctional facility or the Department of Corrections ("DOC") when applying KRS 197.025(1). Ms. Foster advised that the requested Assessment "contains information of a highly sensitive nature that is used to make security and management decisions at the institution and is not meant to be available to inmates (and all institutional staff) ." Disclosure of the information contained in the Assessment to Mr. Hawkins "could jeopardize his safety if somehow the assessment was seen and improperly used by others at the institution to intimidate, threaten, or incite violence."
Resolution of this appeal turns on the application of KRS 197.025(1), which 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.
As indicated, this provision is incorporated into the Act by operation of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are included among those records removed from application of KRS 61.870 to 61.884. In 16-ORD-089, this office affirmed the denial by Kentucky State Reformatory of a request by a KSR inmate for a copy of his PREA Risk Assessment. DOC made a nearly identical argument on behalf of the correctional facility there, and the instant appeal presents no basis to depart from the reasoning found in that decision, a copy of which is attached hereto and incorporated by reference.
In a proper exercise of its discretion, the DOC promulgated 501 KAR 6:020, 1 which incorporates by reference CPP 14.7, relating to Sexual Abuse Prevention and Intervention Programs. As noted, CPP 14.7(F)(4) expressly provides that, "dissemination of information related to and resulting from the assessment shall be controlled and limited to staff necessary to inform treatment plans and make security and management decisions regarding housing, beds, work, education and program assignments." This office is "not in a position to second guess the [DOC] or to conclude that its policy" of withholding PREA assessments per CPP 14.7(F)(4) is an abuse of its broad discretion under KRS 197.025(1). 06-ORD-120, p. 5; 08-ORD-242; 16-ORD-089. KSP adequately demonstrated on appeal that disclosure of the requested PREA Assessment would constitute a legitimate security threat within the meaning of that KRS 197.025(1). Accordingly, this office declines to substitute its judgment for that of the DOC or KSP. The denial is affirmed.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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 Among other statutory provisions, KRS 197.020(1) authorizes the DOC to promulgate administrative regulations necessary for operating the penitentiaries under its jurisdiction. "Administrative regulations properly adopted and filed have the full effect of law and are required to be enforced." Harrison's Sanitarium, Inc. v. Dep't of Health, 417 S.W.2d 137, 138 (Ky. 1967)(citation omitted). "Simply stated, regulations are valid as long as they are consistent with the statutes authorizing them." 07-ORD-060, p. 5.