NOT TO BE PUBLISHED
December 23, 1997
In re: Mark L. Dyer/Otter Creek Correctional Center
Open Records Decision
This matter comes to the Attorney General on appeal from the Otter Creek Correctional Center’s denial of the open records request of Mark L. Dyer, an inmate at the institution, for copies of all records revealing any disciplinary actions taken against eighteen separately listed officers or employees of the Otter Creek Correctional Center.
Loretta Berger, Offender Records, Otter Creek Correctional Center, denied Mr. Dyer’s request, stating:
If any Disciplinary reports exist on the employees named in your request, your request to those documents is denied pursuant to KRS 61.878(1A)(L) [sic; correct cittion is 61.878(1)(a) and (l)] and KRS 197.025(1).
The release of any disciplinary action of information to an inmate could result in a threat to the security of the employee, the institution, and/or other inmates. An inmate could utilize this information to undermine and compromise the authority and effectiveness of the officer.
Ken Perry and Yvonne Johnson are not employed by USCC, they are employees of Kellwell Foods (Beattyville, Kentucky 41311), and you will have to petition Kellwell if you require any information on their employees.
In his letter of appeal, Mr. Dyer argues that the agency’s response was procedurally deficient because it failed to respond within three business days and substantively deficient because the requester of public records is entitled to inspect records which reveal the disciplining of an officer to the extent of the final discipline actions taken and the complaint which prompted the action; that the public (and he as an inmate) has a right to know what complaints have been made; and as to the security of the inmate, inmates, or the institution, his right to know outweigh the privacy of the individuals.
After receipt of the letter of appeal, Ms. Berger, on behalf of the Center and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, provided this office with a response to the issues raised in the appeal. Ms. Berger stated in relevant part:
I explained to Mr. Dyer that his first request had not been delayed by this institution. His request was received by this office on October 28, 1997, and was processed and returned on October 31, 1997.
We are asked to determine whether the Otter Creek Correctional Center violated the Open Records Act in responding to Mr. Dyer’s request. For the reasons which follow, we conclude that the Center’s response was proper and consistent with the Act and prior decisions of this office.
Mr. Dyer contends that it took nine business days from the date that he submitted his request on October 20, 1997, to get a response to his request. The Center states that it received the request on October 28, 1997, processed and returned it on October 31, 1997, which meets the three business day time requirement in which a public agency must respond to an open records request. KRS 61.880(1). We have no reason to doubt the Center, but encourage the agency to ensure efforts are made to eliminate unnecessary delays, if any, in providing timely access to requests for public records.
Turning to the substantive issues, we find that the Center properly relied upon KRS 197.025(1) in denying Mr. Dyer’s request. That provision, which is incorporated into the Open Records Act by 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, 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 office, in 96-ORD-179, held that the Corrections Cabinet properly relied on KRS 197.025 in denying an inmate’s request to inspect agency records relating to a certain corrections officer, such as his application, resume, any disciplinary actions against him, and any records relating to strip searches conducted by the officer. The Corrections Cabinet explained that disclosure of the records sought by the inmate would constitute a threat to the security of other inmates, the institution, and the named corrections officer. In concluding that it was clear from the nature of the records involved that a release of the records would constitute a threat to the security of the institution and institutional staff, we stated in relevant part:
Clearly, disclosure of records . . . reflecting any disciplinary actions against an officer, could compromise the officer’s effectiveness and place him at risk.
In the instant case, the Center explained that the release of any disciplinary action or information to an inmate could result in a threat to the security of the institution’s officers or employees involved, other inmates, and the institution, as the inmate could use the information to undermine and compromise the authority and effectiveness of the officers or employees.
Accordingly, we conclude that the Otter Creek Correctional Center
properly denied Mr. Dyer’s request for all records revealing any disciplinary actions taken against certain listed officers or employees of the Center, or any other person, under authority of KRS 197.025(1) and 96-ORD-179. As to the requests for records of the two employees of Kellwell Foods, a private company, the Center discharged its obligations, if any, under the Open Records Act by notifying Mr. Dyer that these two employees were not employed by the Center and furnishing the name and location of their employer, Kellwell Foods in Beattyville, Kentucky. See KRS 61.872(4).
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.
Albert B. Chandler III
James M. Ringo
Assistant Attorney General
Mark L. Dyer #86258
Lee Adjustment Center
PO Box 900
Beattyville KY 41311-0900
Otter Creek Correctional Center
PO Box 500
Wheelwright KY 41669
Otter Creek Correctional Center
PO Box 500
Wheelwright KY 41669
R. Allen McCartney
2500 7th Street Road
Louisville KY 40208