NOT TO BE PUBLISHED
March 4, 1997
In re: Kenneth Renn/Eastern Kentucky Correctional Complex
Open Records Decision
This matter comes to the Attorney General on appeal from the Eastern Kentucky Correctional Complex's (EKCC) denial of Mr. Kenneth Renn's open records request to inspect a copy of the most recent honor dorm waiting list.
Ms. Cecilia Underwood, Unit Director, EKCC, denied Mr. Renn's request, stating:
This is not an open record. A list is maintained only for the use of unit staff.
In his letter of appeal, Mr. Renn states that the list does not fall within any of the exceptions found in KRS 61.878 and asks this office to find that EKCC's actions with respect to keeping the honor dorm waiting list closed to be in violation of the Open Records Act.
On February 5, 1997, we sent a Notification of Receipt of Open Records Appeal to EKCC and enclosed a copy of Mr. Renn's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Tamela Biggs, Esq., Staff Attorney, Department of Corrections, provided this office with a response, on behalf of EKCC, to the letter of appeal.
In her response, Ms. Biggs states, in relevant part:
After reviewing Mr. Renn's appeal, I discussed his allegations with Ms. Underwood. She stated that she has attempted to explain to Mr. Renn how the list is utilized and why inmates are not admitted to the dorm solely due to date of application. Inmates are required to apply for a space on the honor dorm due to the limited number of beds available. Currently, there 1,663 inmates at EKCC. The honor dorm has a capacity of 128 beds. When a space comes available, the inmates are not taken in the order in which they appear on the list. Pursuant to institutional policy, the unit shall reflect the racial balance of the institution; therefore, if the institutional ratio is 40% minority, the honor dorm composition should be the same. Another consideration is the job needed in the dorm at that time. If a space is available on the dorm and a janitor (food service worker, etc.) is needed, the list shall be utilized to locate the inmate who currently works in that capacity and will help maintain the necessary racial balance. The chosen inmate would meet the foregoing criteria and have the earliest date of application to the list of those who meet the two earlier criteria.
Contrary to Mr. Renn's allegations, the list is available for caseworkers for the purpose of verifying that an inmate is indeed on the list. Any other information, including an inmate's position on said list, is not to be disclosed. The Unit Directors receive a copy of the list as a courtesy and are aware of the fact that particular information is not to be released. The universe to which the list is disseminated is considerably less than the 100 or more alluded to by Mr. Renn.
I have discussed the rationale behind the response given by the institutional staff and have informed them that while the underlying concerns are valid, the response did not meet the requirements of the Open Records Act. The response should have stated that the honor dorm waiting list is not open to the inmate population pursuant to KRS 61.878(1)(i) and 197.025(1). The list is preliminary in nature, a reference tool which provides, in a condensed form, the necessary background information on the inmates who are eligible for honor dorm status. The mere fact of numerical placement does not constitute an ironclad guarantee of the order in which an inmate shall be granted access to the dorm. The lists are also withheld due to the potential for conflicts in and among the inmate population. If the inmates were privy to the names and positions of others on the list, it could result in false accusations and planting of evidence in order to get those at the top of the list removed and/or confrontations with staff over a perceived bias or misuse of the selection criteria.
(Emphasis in the original.)
The issue before us is whether the EKCC's responses withholding disclosure of the honor dorm waiting list was consistent with the Open Records Act. For the reasons which follow, we conclude that, although the initial response was procedurally deficient, the response to the letter of appeal mitigates the deficiency and EKCC was in substantial compliance with the Act.
KRS 61.880(1) requires that upon receipt of an open records request, a public agency must respond in writing within three business days indicating whether the requester may inspect the requested records. If any records are to be withheld from inspection, the agency should include a statement of the specific exception which authorizes the agency to withhold the record, and a brief explanation of how the exception applies to the records withheld.
EKCC's initial response, as noted by Ms. Biggs in her response to the letter of appeal, was procedurally deficient to the extent it did cite the exception which authorized the withholding of the list and how that exception applied to the list. However, the procedural deficiency is mitigated by the agency's subsequent response which met this requirement.
EKCC relied on KRS 197.025(1) in denying Mr. Renn's request. That provision, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l),  states:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility 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.
(Emphasis added.) This statute vests EKCC with a great deal of discretion in the release of records maintained at its facility. This broadly worded provision is not limited to inmate records, but extends to any records the disclosure of which is deemed to constitute a threat to the security of the institution. 96-ORD-204. However, this exercise of discretion is not unfettered. 96-ORD-179. There must be some brief explanation as to how release of the requested record would constitute a threat to the institution or institutional staff or inmates.
Ms. Biggs, in her response, explained that the honor dorm waiting list is an internal administrative reference document, not disclosed to the inmate population, that advises agency staff of inmates eligible for honor dorm status. Selection for placement is based on a variety of factors other than numerical placement, including racial balance and the particular job needed at the dorm at the time of selection. She further explained that the list was withheld from the inmates due to the potential conflicts and problems which could result among the inmates, particularly those vying for placement in the dorm, if the list was released and confrontations with staff over perceived misuse of the list and selection criteria.
We conclude that EKCC adequately explained how release of the requested information to Mr. Renn and other inmates could constitute a threat to the security of the institution. This office is not in a position to second guess the agency or to conclude that it abused its discretion on the basis of the facts as presented in this appeal. 94-ORD-40. Accordingly, we conclude EKCC properly relied upon KRS 197.025 in denying access to the requested record.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
A. B. Chandler III
James M. Ringo
Assistant Attorney General
Kenneth Renn #96154
Dorm 2 DL 08
Eastern Kentucky Correctional Complex
P. O. Box 636
West Liberty KY 41472
Open Records Coordinator
Eastern Kentucky Correctional Complex
P. O. Box 636
West Liberty KY 41472
Department of Corrections
State Office Building
Frankfort KY 40601
 KRS 61.878(1)(l) excludes from public inspection:Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.