Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory ("KSR") violated the Open Records Act in its disposition of inmate Jeff Carpenter's request dated October 8, 2019, for certain e-mails related to either himself or "Transfers." For the reasons that follow, we find that KSR partially violated the Act.
Mr. Carpenter requested "all-E-Mails with respect to Jeff Carpenter made between all staff members at KSR on [ sic ] August 11, 2019 to September 11, 2019 especially e-mails of UAI James Ford; CTO Lovell Lewis; and Phillip T Campbell; Alan D Long; Ben Mitchell; Tyler Strough; and Warden Anna Valentine; and all e-mails concerning Transfers." KSR received the request on October 16, 2019.
On October 22, 2019, KSR denied certain portions of Mr. Carpenter's request. We received Mr. Carpenter's appeal on October 29, 2019. We shall analyze the various denials separately.
All e-mails between staff members concerning Jeff Carpenter between August 11 and September 11, 2019
KSR denied this portion of the request, stating as follows: "The institution has approximately 400 employees. It would take hundreds of hours for each employee to search for emails with your name and is overly burdensome. "
We find that this portion of KSR's response was "deficient insofar as [it] failed to indicate what, if any, records exist that are responsive to the request." 06-ORD-270. A public agency's "first obligation under the Open Records Act [is] to identify responsive records." 15-ORD-109.
Accordingly, an agency has the duty "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested[.] Thus, the agency must expend reasonable efforts to identify and locate the requested records." 95-ORD-96 (internal quotation marks omitted). In complying with this obligation, the agency "is required to make a reasonable search of persons who are likely to have a responsive documents." 14-ORD-181. Conducting this search is not "overly burdensome, " but a fundamental requirement of the Act.
KRS 61.872(6) provides as follows:
If the application places an unreasonable burden in producing public records [,] the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In a narrow range of cases, where large numbers of records would require individualized review by multiple agency employees to comply with mandatory privacy provisions, we have upheld the application of the "unreasonable burden" standard of KRS 61.872(6). See 14-ORD-109 (over 6,200 e-mails subject to FERPA redaction) ; 11-ORD-173 (over 8,500 e-mails subject to FERPA redaction) .
Here, however, the "unreasonable burden" argument is not ripe for review, as KSR failed to conduct a search to ascertain an approximate number of responsive records. Without this "crucial piece of evidence," KSR cannot demonstrate an unreasonable burden by clear and convincing evidence. 14-ORD-153; 19-ORD-182. Therefore, this portion of KSR's denial violated the Open Records Act.
Nonexistent records
In its response, KSR indicated that employees James Ford and Philip Campbell possessed no responsive records. In addition, KSR stated that it has no employee named Alan D. Long and, consequently, cannot provide records from him. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In the absence of anything in the record to indicate that KSR possessed any such records, we find no violation of the Act in this portion of KSR's response.
Duplicate request
KSR represented that attachments to two responsive e-mails from Warden Valentine were documents Mr. Carpenter had already received on August 28 and September 4, 2019, in response to previous open records requests, and therefore declined to provide duplicate copies. A public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." 95-ORD-47. As no such justification exists here, we uphold the denial of these attachments.
Portions of records containing no specific reference to inmate
According to KSR's response, certain e-mails and attachments from Ben Mitchell and Tyler Strough were redacted for various reasons. Some of the redactions consisted of "other inmate names, DOC numbers, housing area, etc." withheld because they did not "contain a specific reference" to Mr. Carpenter.
For these redactions, KSR cited KRS 61.878(1)(l), which incorporates exceptions to open records pursuant to other state law, in conjunction with KRS 197.025(2), which provides as follows:
KRS 61.970 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.
We have consistently interpreted this provision as requiring the "specific reference" to be by name. 03-ORD-150; 09-ORD-057. The exemption applies to "records, or portions of records , that do not contain a specific reference to the requesting inmate. " 16-ORD-092 (emphasis added) (citing 04-ORD-071); see also 09-ORD-095. As identifying information for other inmates would not contain a specific reference to Mr. Carpenter, we affirm these redactions.
Conflict information
Citing KRS 61.878(1)(l) and KRS 197.025(1), KSR redacted information on "whether or not there exist conflicts" on grounds that "[t]he Department [of Corrections] has determined that [disclosure] would constitute a threat to the security of inmates, the institution, institutional staff, or others." KSR further explained that "[c]onflicts are a risk because an inmate may have a conflict and not be aware that it exists, which could make other inmates or staff targets."
KRS 197.025(1) provides that "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." This provision 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.
We have previously upheld the denial or records relating to inmate conflicts. 16-ORD-070; 11-ORD-181. In so holding, 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. See 04-ORD-017. Consistent with this precedent, we conclude that KSR properly redacted conflict information from the requested records on the basis of KRS 197.025(1).
Secured policies or secured operations
Citing KRS 61.878(1)(l) and KRS 197.025(1) and (6), KSR made redactions "concerning secured policies or secured operations" as "a threat to the security of inmates, the institution, institutional staff, or others." KRS 197.025(6) provides, in pertinent part:
The policies and procedures or administrative regulations of the department which address the security and control of inmates and penitentiaries shall not be accessible to inmates.
This provision "establishes beyond cavil that policies and procedures . . . relating to security and control of inmates and penitentiaries are inaccessible to inmates and the public." 05-ORD-055. To the extent that the redacted material would reveal such policies and procedures, we affirm KSR's redactions.
Although KSR does not define the term "secured operations," its invocation of KRS 197.025(6) implies that it refers to operations conducted pursuant to policies made confidential by that subsection. By the logic of KRS 197.025, disclosure of such operations could reasonably be deemed a security threat under subsection (1), and we affirm those redactions on that basis.
Medical information
KSR also redacted "[a]ny medical information concerning another inmate or staff" pursuant to KRS 61.878(1)(a), which excludes "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " Under this subsection, "[o]nce a protectable privacy interest is established, proper application of the Open Records Act requires a 'comparative weighing of the antagonistic interests' -- the privacy interest versus the policy of openness for the public good."
Cape Publications v. City of Louisville, 147 S.W.3d 731, 734 (Ky. App. 2003) (quoting
Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992).
"[D]isclosure of medical records or the information contained therein generally constitutes a 'clearly unwarranted invasion of personal privacy, ' and such records [may] thus be withheld on the basis of KRS 61.878(1)(a)." 09-ORD-059. We have previously upheld the nondisclosure to inmates of medical information pertaining to other inmates and correctional staff. 18-ORD-186; 18-ORD-178. In the absence of any superior countervailing public interest in disclosure of this information, 1 we affirm KSR's redactions in accordance with this precedent.
Conclusion
KSR violated the Open Records Act by failing to conduct a search for all staff e-mails relating to Mr. Carpenter over a one-month period. KSR failed to establish by clear and convincing evidence that this request would impose an unreasonable burden under KRS 61.872(6). With regard to the other portions of the request, KSR did not violate the Act by failing to produce nonexistent records or by making the redactions indicated in its response.
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 At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Zink v. Commonwealth, Dep't of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). Mr. Carpenter argues that he needs the requested e-mails for use in a civil action. "The fact that Mr. [Carpenter] may have a personal interest in obtaining the [medical records] does not equate to a preponderant interest on the part of the general public." 16-ORD-035. "It is the public's interest, and not Mr. [Carpenter's] personal interest, which must be advanced by release of the disputed records." 94-ORD-45.