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 Green River Correctional Complex ("GRCC") violated the Open Records Act in denying Kevin Raiford's April 10, 2019, request for one copy of the "twenty-two (22) scanned documents attached to the EOR [Extraordinary Occurrence Report] on report # LAC-2019-02-023 from February 20, 2019[,] includ[ing] eight (8) incident reports, thirteen (13) digital photos, and one (1) medical incident report for a total of 22 pages." Consistent with existing legal authority construing KRS 197.025(1) and 197.025(2), incorporated into the Act per KRS 61.878(1)(l), this office affirms the agency's ultimate disposition of the request; issues relating to 54 pages that GRCC has agreed to release upon receipt of payment are moot per 40 KAR 1:030 Section 6. 1
In a timely written response per KRS 197.025(7), Offender Information Specialist Teresa K. Moore advised Mr. Raiford that upon careful examination of his Kentucky Offender Management System ("KOMS") scanned documents file, it became apparent he would need to submit his request to Lee Adjustment Center ("LAC") "as the EOR was prepared at that facility." Ms. Moore further explained that Mr. Raiford had to complete a new Request to Inspect Public Records Form and two approved Cash Payment Orders ("CPO")-one for the copying fee and one for the postage cost; she also provided the mailing address for LAC per KRS 61.872(4). However, upon receiving notification of Mr. Raiford's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, supplemented the agency's response.
On appeal, Ms. Barker explained that after Ms. Moore received Mr. Raiford's appeal, she determined that his EOR was accessible by certain staff at GRCC rather than only being accessible by staff in the facility where it was prepared. Accordingly, GRCC reviewed the records that comprised the requested EOR and concluded that it could release a redacted copy of 54 pages upon receipt of a completed CPO. In her May 23, 2019, memorandum to Mr. Raiford, a copy of which Ms. Barker attached to her appeal response of that date, Ms. Moore explained that disclosure of certain excerpts from the EOR "including response information and security references would constitute a threat to the security of inmates, the institution, institutional staff, or others and cannot be provided pursuant to KRS 197.025(1) and KRS 61.878(1)(l)." Citing KRS 197.025(2) and KRS 61.878(1)(l), Ms. Moore further stated to Mr. Raiford that a report and a number of pictures attached to the EOR do not contain a specific reference to him and were thus being withheld. GRCC also redacted the birthdate of the other inmate involved and portions of the statements that concern only the other inmate under authority of KRS 197.025(1).
In further support of the redactions that GRCC ultimately made from the body of the EOR and the attached reports per KRS 197.025(1), Ms. Barker explained:
The EOR contains a minute-by-minute account of the actions taken by security personnel after the actions of the inmate were discovered. The EOR also contains security references that give information about staff response that should not be provided generally to inmates without potential risk to staff in future responses. Releasing this kind of information to an inmate would create a security risk by revealing too much detail about staff response to such incidents.
She referenced a number of prior decisions by this office affirming the denials by agencies of requests for EORs (or portions thereof). In addition, she reiterated that information "solely about the other inmate was also redacted because it is a security risk to allow an inmate to have information about another inmate in his possession causing the potential for fights and attacks. Generally, records concerning another inmate are not provided or [are] redacted for information concerning the other inmate. " GRCC reviewed the records in dispute somewhat differently, she stated, "given the subject of one inmate attacking another and more information than normal was offered. This type of record has not been disclosed in the past when the nature of the attack was different and too much investigative information would have been disclosed."
Resolution of this appeal turns largely on the application of KRS 197.025(1), pursuant to which: "KRS 61.884 and 61.878 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." This provision is incorporated into the Open Records 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. By enacting KRS 197.025(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; 17-ORD-097.
In construing the expansive language of this provision, the Attorney General has recognized 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. 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 (emphasis added); 03-ORD-190 (affirming denial of request for incident reports because allowing inmates to view such reports would provide "'a means by which inmates could get information that may become the basis for retaliation against other inmates or security staff of the institution'"). Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from the public for a variety of records based on KRS 197.025(1), including, but not limited to extraordinary occurrence reports (07-ORD-039, 16-ORD-071, 17-ORD-097); personnel statements contained in EORs (10-ORD-056, 10-ORD-063, 12-ORD-123); information regarding other individuals contained in EORs (08-ORD-251); conflict sheets (OAG 91-136, 11-ORD-177); and psychological evaluations of inmates (92-ORD-1314). The instant appeal presents no basis to depart from this well-established line of authority.
Here, GRCC determined, in a proper exercise of its discretion, that disclosing portions of the requested EOR concerning staff response to such incidents, information relating to another inmate would pose a security threat to GRCC staff, other inmates, and the institution. The Attorney General has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 96-ORD-179; 00-ORD-125; 11-ORD-177. As before, this office declines to substitute its judgment for that of the correctional facility or DOC. In sum, GRCC properly relied upon KRS 197.025(1) in withholding the specified portions of the requested EOR.
In addition, GRCC properly relied upon KRS 197.025(2) in withholding any report or picture that did not contain a specific reference to Mr. Raiford and in redacting certain portions of the EOR that lacked any reference to him. 2 This office has consistently recognized that KRS 197.025(2) expressly authorizes correctional facilities like GRCC to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. See 00-ORD-040; 10-ORD-136; 12-ORD-070. Inasmuch as the records (or portions thereof), including photographs, do not contain a specific reference to him, as required under KRS 197.025(2), Mr. Raiford is not entitled to access those records, notwithstanding his underlying concerns. Rather, he is expressly precluded from gaining access to records (or portions thereof) which do not contain a specific reference to him by the mandatory language of this provision. Accordingly, GRCC also properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in partially denying his request.
Either party may appeal this decision may appeal 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 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 03-ORD-087.
2 KRS 197.025(2) provides:
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.