NOT TO BE PUBLISHED

 

 

 

 

 

 

 

97-ORD-134

August 28, 1997

 

In re: Mark L. Dyer/Lee Adjustment Center

Open Records Decision

This is an appeal from Lee Adjustment Centerís response to Mark L. Dyerís June 7, 1997, request for copies of "all documents pertaining to the approval, design, construction, bills, payments, and the like of the perimeter fence" at the Center. On June 11, 1997, Warden Harvey Fields and records manager Lisa Hall denied Mr. Dyerís request. Relying on KRS 197.025(1) and KRS 197.510(7), they advised him that "information regarding design and construction constitute a security threat [, and] other items are financial records of a private provider . . . [which] would place provider at a disadvantage if disclosed." The question presented in this appeal is whether Lee Adjustment Center properly relied on KRS 197.025(1) and KRS 197.510(7) in denying Mr. Dyerís request. For the reasons which follow, we affirm the Centerís response.

KRS 197.025(1), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), provides:

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 [of Corrections], 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.

In enacting this provision, "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. 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.

This broadly worded provision "is not limited to inmate records, but extends to Ďany recordsí the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2. Since the statute was enacted in 1990, this office has affirmed correctional facilitiesí denials of inmate requests, as well as requests submitted by others, for conflict sheets (OAG 91-136); psychological evaluations (OAG 92-25, 92-ORD-1314); inmate canteen records (94-ORD-40, 96-ORD-209, 97-ORD-25); personnel records of correctional officers or employees (96-ORD-179, 96-ORD-182, 96-ORD-204); reports of deficiencies at correctional facilities (96-ORD-222); records confirming that inmates have submitted to HIV testing (96-ORD-243); inmate honor dorm waiting lists (97-ORD-33); and records containing procedures employed in an execution (97-ORD-51).

Mr. Dyer requested copies of all records relating to the perimeter fence at Lee Adjustment Center. It does not require an advanced degree in penology and security management to appreciate how disclosure of records relating to the design and construction of the perimeter fence at the correctional facility at which the requester is incarcerated would constitute a threat to institutional security. Nor are we inclined to substitute our judgment for that of the facilityís warden, but defer to him in such matters.

With respect to financial records relating to the perimeter fence, including bills, payments, and the like, we find that Lee Adjustment Center properly relied on KRS 197.510(7) in issuing its denial. 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, maintained 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.) In construing this provision, the Attorney General has opined:

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.

94-ORD-27, p. 7. Records documenting the cost of and payment for the perimeter fence are properly characterized by Lee Adjustment Center as "financial records" which are excluded from public inspection. As this office has observed:

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).

94-ORD-27, pp. 7, 8. We believe that 94-ORD-27 is dispositive of this portion of Mr. Dyerís appeal.

It should be noted, however, that the Centerís response was procedurally flawed. KRS 61.880(1) contains procedural guidelines for agency response to an open records request. That statute provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

Lee Adjustment Center failed to cite the specific exception to public inspection of records codified at KRS 61.878(1)(a) through (l) by which KRS 197.025(1) and KRS 197.510(7) are incorporated into the Open Records Law, namely KRS 61.878(1)(l). This office has repeatedly expressed its reluctance to rule against an agency because of a procedural violation, such as failure to cite the exception authorizing nondisclosure, see e.g., 96-ORD-56, but we remind the Center that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records appeal." 93-ORD-125, p. 5. Lee Adjustment Center should be guided by these observations in future open records transactions.

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

Attorney General

 

 

Amye L. Bensenhaver

Assistant Attorney General

#791

 

Distributed to:

Mark L. Dyer #86258

Lee Adjustment Center

P. O. Box 900

Beattyville KY 41311-0900

Harvey Fields, Warden

Lee Adjustment Center

P. O. Box 900

Beattyville KY 41311

Lisa Hall

Custodian of Records

Lee Adjustment Center

P. O. Box 900

Beattyville KY 41311-0900

R. Allen McCartney

Attorney at Law

Seagrams Building, First Floor

2500 Seventh Street Road

Louisville KY 40208-1029