TO BE PUBLISHED
March 2, 1994
IN RE: Jon L. Fleischaker/Department of Corrections
OPEN RECORDS DECISION
This appeal originated in a request for records submitted by Mr. R. G. Dunlop, a reporter for The Courier-Journal, to the Kentucky Department of Corrections on October 14, 1993. Among the records requested, Mr. Dunlop sought access to correspondence between the Department and private provider, U.S. Corrections, relating to Institutional Parole Officers Audrey Combs or James Carter. In addition, he requested records relating to canteen operations at the Lee Adjustment Center or the Marion Adjustment Center.
In a letter dated October 18, 1993, Ms. Barbara W. Jones, General Counsel for the Department of Corrections, responded to Mr. Dunlop's request. Relying on KRS 61.878(1)(i), "which exempts from disclosure preliminary memoranda in which opinions are expressed or policies formulated or recommended," she denied his request for correspondence concerning Institutional Parole Officers Audrey Combs and James Carter. Ms. Jones also denied Mr. Dunlop's request for records relating to canteen operation at the Lee and Marion Adjustment Centers. Citing KRS 61.878(1)(k), she argued that these records are made confidential by enactment of the General Assembly, to wit, KRS 197.510(7). That statute provides that financial records of a private provider are not public records.
On behalf of his clients, The Courier-Journal and reporter R. G. Dunlop, Mr. Jon L. Fleischaker appealed the Cabinet's decision to this Office. Mr. Fleischaker maintains that his clients are entitled to inspect any correspondence
between U.S. Corrections and the Department of Corrections containing complaints about Audrey Combs or James Carter. It is his understanding that "as a result of, or at least, in response to, these complaints the Department of Corrections recently decided to assign monitors to its private prisons." Citing Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953 (1983), City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1983), and Kentucky Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 324 (1992), he asserts that the public has a "compelling interest in how the Department of Corrections addresses complaints about its institutional parole officers."
With respect to documents relating to canteen operations at the Lee and Marion Adjustment Centers, Mr. Fleischaker notes that although KRS 197.510(7) excludes particular financial records of U.S. Corrections from public inspection, "that does not necessarily mean that all records in any way related to its financial activities are also excluded." In support of this view, he cites KRS 197.510(28) which requires adult correctional facilities which operate canteens to spend all profits on recreational programs for inmates. Since the Department of Corrections has a statutory duty to oversee the state's correctional institutions, including institutions operated by private providers, the public has, in Mr. Fleischaker's view, "an uncontested right" to scrutinize the Department's performance of these duties. KRS 196.030(a); KRS 197.505(1). Access to public records would, in this instance, permit the public to determine if the canteens made a profit and if those profits were spent for recreational programs for the inmates. Moreover, he notes, his client has been advised that all canteen operations have been turned over to a non-profit organization, "thereby making any records of day-to-day canteen operations unrelated to the finances of this private provider." Mr. Fleischaker urges this Office to issue a decision consistent with these views.
Unable to resolve this dispute on the facts presented, this Office requested additional information from the Department of Corrections on February 2, 1994. In response, Ms. Jones reaffirmed the Department's position relative to the correspondence concerning Audrey Combs and James Carter. She explained:
[T]his correspondence contains both opinion and recommendations concerning Audrey Combs,
the institutional parole officer at Lee Adjustment Center. Upon investigating the issues raised in the correspondence, the Department of Corrections determined that there was no basis for any action against Ms. Combs. . . . [T]he correspondence concerning Ms. Combs is exempted from disclosure by KRS 61.878(1)(i). In addition, the disputed records also constitute preliminary correspondence with private individuals other than correspon-
dence intended to give notice of final action of a public agency and, thus, would be exempted under KRS 61.878(1)(h).
Ms. Jones did not respond to Mr. Fleischaker's allegation that corrective action had been taken at the private prison in response to these complaints. To facilitate our review, she furnished this Office with copies of the disputed records. Those records were not disclosed to other persons, and have been destroyed.
Ms. Jones again asserted that the Department interprets KRS 197.510(7) to prohibit public inspection of all records related to the financial activities of the private provider. "This statute," she observes, "does not distinguish between types of financial records . . . ." Nevertheless, Ms. Jones acknowledges that KRS 197.510(7) "has no effect upon the disclosure of records maintained by the state concerning payments to the private provider or other expenditures relating to inmates housed in private prisons."
Further, she notes, monies which are paid in and out of inmate canteens are not public monies. Inmates in these private prisons spend their own money in the canteens. Ms. Jones concedes that the inmate canteens are operated by a private, nonprofit corporation, Rehab Advocates, Ltd., but no public monies go into or out of the canteens. Rehab Advocates "is a private corporation doing business with another private corporation," not the state, and is therefore not a public agency for purposes of the Open Records Act.
We are asked to resolve two questions in this open records appeal:
(1) Whether the Department of Corrections properly relied on KRS 61.878(1)(h) and (i)
in denying Mr. Dunlop's request for correspondence between the Department of Corrections and U.S. Corrections Corporation which relates to Institutional Parole Officers Audrey Combs or James Carter.
(2) Whether the Department properly relied on KRS 61.878(1)(k) and KRS 197.510(7) in denying his request for information relating to canteen operations at the Lee and Marion Adjustment Centers.
For the reasons set forth below, we conclude that the Department improperly denied Mr. Dunlop's request for correspondence between itself and U.S. Corrections Corporation relating to Audrey Combs or James Carter. However, the Department's denial of his request for information relating to canteen operations at the centers was entirely consistent with the Open Records Act.
As Mr. Fleischaker correctly notes, the courts and this Office have long recognized that complaints against public officers and employees are not exempt from inspection after final action is taken, or the decision is made to take no action, under either KRS 61.878(1)(h) or (i). City of Louisville v. Courier-Journal, supra; Kentucky State Board of Medical Licensure v. Courier-Journal, supra; OAG 81-127; OAG 81-291; OAG 83-41; OAG 84-315; OAG 85-126; OAG 85-136; OAG 89-13; OAG 89-73; OAG 89-74; OAG 91-33; OAG 91-45; OAG 91-62; OAG 91-81; OAG 91-90; OAG 91-91; OAG 92-34. Thus, in City of Louisville, supra at 660, the Court of Appeals observed:
Inasmuch as whatever final actions are taken necessarily stem from [the complaints], they must be deemed incorporated as part of those final determinations.
* * *
The public upon request has a right to know what complaints have been made and the final action taken . . . thereupon.
Echoing this view, in Kentucky State Board of Medical Licensure, supra at 956, the Court stated:
It is beyond contention that complaints which 'initially spawned' any investigation . . . [of a public officer or employee] may not be excluded [from the operation of the Open Records Act] because the public 'has a right to know what complaints have been made.' [City of Louisville, supra at 660]. . . . Inasmuch as final actions stem from the complaints, they must be incorporated as part of the final determination and are therefore not exempt under KRS 61.878(1)[(h)] or [(i)].
These principles are well-entrenched.
Having examined the disputed correspondence, we conclude that it must be characterized as a complaint from U.S. Corrections Corporation to the Department of Corrections. The letter relates, generally, to a series of incidents involving one of the Institutional Parole Officers identified in Mr. Dunlop's open records request, and incorporates by reference a number of memoranda, with which we have also been provided, documenting these incidents. At the close of the letter, the author, a U.S. Corrections Corporation official, requests that the Department consider disciplinary action against the Institutional Parole Officer. While the letter includes opinions and recommendations, it is clearly intended to serve as a complaint. It contains charges against the Institutional Parole Officer, and proposes remedial action. The fact that the Department concluded that there was no basis for action against the Institutional Parole Officer has no bearing on whether the correspondence/complaint must be released. In our view, the records are not exempt from disclosure pursuant to KRS 61.878(1)(i).
Although in City of Louisville, supra at 660, the Court admonished "that it is possible that these complaints could be afforded continuing exemption under subsection [(h)] relating to preliminary correspondence with private individuals[,]" we are not persuaded that this exception is applicable in the present context. As Mr. Fleischaker notes, U.S. Corrections Corporation is a private provider which has contracted with the state to operate and manage the Lee and Marion Adjustment Centers. KRS 197.505. This Office has recognized:
A contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case. Such a contractor, in our view, loses any character of a 'private individual,' as such phrase is used in KRS 61.878(1)[(h)], that the contractor might be said to have, in connection with correspon-
dence regarding administration or issues associated with administration of a governmental or public contract. (Citation omitted.)
OAG 90-7, p 4; OAG 92-120; 92-ORD-1134; 93-ORD-67; 93-ORD-113.
The correspondence which is at issue in this appeal was authored by an official of U.S. Corrections Corporation on an issue pertaining to the operations and management of the Lee Adjustment Center. It was directed to an official of the Department of Corrections, Division of Probation and Parole. It cannot properly be characterized as "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency." KRS 61.878(1)(h). We therefore conclude that the Department of Corrections must immediately release the correspondence to Mr. Dunlop.
Turning to the second issue raised in this open records appeal, we find that the Department properly denied Mr. Dunlop's request for records relating to canteen operations at the Lee and Marion Adjustment Centers pursuant to KRS 61.878(1)(k), which incorporates the prohibition on release of financial records maintained by the private provider found at KRS 197.510(7). That statute provides:
The private provider shall develop and implement a plan for the dissemination of information about the adult correctional
facility to the public, government agencies, and the media. The plan shall be made available to all persons. All documents and records, except financial records, main-
tained by the private provider shall be deemed public records as defined by KRS 61.870 and be subject to the provisions of KRS 61.872 to 61.884.
(Emphasis added.) As Ms. Jones correctly notes, "This statute does not distinguish between types of financial records . . . ."
The aim of privatization, as we understand it, is to implement private sector management efficiency and principles of competitive business in the traditionally public penal sector. The state does not, of course, entirely forfeit its responsibility for operating correctional facilities. It retains the power to supervise and monitor the management and operation of the facilities. See, e.g. KRS 197.505(1); KRS 197.510(4); KRS 197.510(5); KRS 197.510(7); KRS 197.510(9); KRS 197.510(10); KRS 197.510(29); KRS 197.515; KRS 197.525.
Moreover, the private provider is publicly accountable. The records of the private provider are, in general, treated as public records within the meaning of KRS 61.870(2). KRS 197.510(7). That statute stops short, however, of mandating wholesale disclosure of private provider records. It expressly exempts financial records maintained by the private provider, presumably out of a recognition that the provider is a private entity which might be competitively disadvantaged by the release of these records.
We are not persuaded by Mr. Fleischaker's argument that his client is entitled to records which disclose whether the inmate canteens at the Lee and Marion Adjustment Centers made a profit in the particular years requested. Such records are properly characterized by the private provider as "financial records." In enacting KRS 197.510(7), the General
Assembly has carved out an exception to the rule of public accountability for such records, and entrusted the Department of Corrections with the duty to insure that the private provider satisfies the requirements of KRS 197.510(2). The statute is clear on its face.
We remind the parties of this office's view of its role as dispute mediator in an open records appeal:
The public has the right to inspect any public record unless it is made confidential by statute or comes under one of the exemptions in KRS 61.878. We believe it is not for the Attorney General to weigh the equities or rationalize exemptions which are not expressly set forth in the law. We interpret the law as it is and not as we think it should be. If changes in the law are to be made, they should be made by the legislature and if subtle interpre-
tations are to be made, they should be made by the Court.
OAG 80-54, p. 3. The parties should bear these observations in mind.
The Department of Corrections and Mr. Fleischaker may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Barbara W. Jones
Kentucky Department of Corrections
Office of the General Counsel
200 State Office Building
Frankfort, KY 40601
Hon. Jon L. Fleischaker
Wyatt, Tarrant & Combs
Louisville, KY 40202