NOT TO BE PUBLISHED
96-ORD-182
August 30, 1996
In re: John E. Reneer/Department of Corrections
Open Records Decision
This matter comes to the Attorney General on appeal from the
Department of Corrections's denial of Mr. Reneer's open records
requests to inspect certain of the Department's records. By
requests dated July 18, 1996, Mr. Reneer made three separate open
records requests to the Department to inspect the following
documents:
1. The contract, agreement, and other record of every type and
description reflecting or referring to the total services which
Dr. Ameji is expected to provide to inmates and/or staff at EKCC,
and 2. the record reflecting the amount of money paid to Dr.
Ameji for those services.
2. The record reflecting the method of calculating the amount
of money which private prison providers must pay to EKCC, the
Department of Corrections, or any staff member thereof, for
services rendered to the private provider by Dr. Ameji.
3. The license, contract, Kentucky Administrative Regulation,
CPP, Medical Canon, and other record of every type and
description which provides authorization which permits any EKCC
or Corrections staff member of department to receive or accept
payment for providing medical services to private prison
providers, including payment for services provided to the private
prison concern by Dr. Ameji.
On July 25, 1996, Ms. Linda Hill, Custodian of Records, EKCC,
denied each request pursuant to KRS 197.510(7), without
explanation as to how the statute applied to the records
withheld.
In his letters of appeal, Mr. Reneer asks this office to
decide whether these denials were in violation of the Open
Records Act. Because the three requests were presented on the
same day to the same agency, this office will treat and address
the issues raised in the three appeals in one decision.
After receipt of the letters of appeal, Ms. Tamela Biggs,
Staff Attorney, Department of Corrections, as authorized by KRS
61.880(2) and 40 KAR 1:030, Section 2, provided this office with
a written response to the issues raised in these appeals. In her
response, Ms. Biggs, in addressing the issues raised in the order
set out above, states in relevant part:
The first request regarding a copy of the contract, etc.
reflecting the services Dr. Ameji is expected to provide inmates
and/or staff and the amount of money paid for said services, was
inadvertently missed in responses. Please note, however, that Dr.
Ameji is a state employee, therefore, Corrections is unable to
provide a copy of an "employment contract." The salary
portion of the request should have been denied pursuant to KRS
197.025. Following discussions with the wardens and members of
Central Office staff, Corrections does not divulge an employee's
salary information. Due to the nature of our business and its
inherent security concerns, the release of certain employee
information may constitute a threat to the security of the
institution or institutional staff.
The second request was for the record reflecting the method of calculating the amount which the private prison providers must pay EKCC or Corrections for Mr. Ameji's services. EKCC staff conferred with Warden O'Dea and Central Office to determine the correct response to this request. KRS 197.510(7) states that all documents and records, except financial records, shall be deemed public records. We interpret that section to preclude the disclosure of our copy of any such document. To require Corrections to disclose a copy of a document which is exempt while in the possession of the private provider, defeats the purpose of KRS 197.510(7). A private provider would be wary of entering into any type of financial arrangement with a state entity if mere possession of a copy of such agreement would suddenly make the document "public" due to its physical location. . . .
The third request is similar to the previous request regarding
payment for medical services to private providers, including
payment for services Dr. Ameji provided to said facilities. The
same statutory reference and rationale should have been given in
response to this request. Again, due to a miscalculation, a full
denial was not given.
For the reasons which follow, we conclude that the responses
of the Department were consistent in part and inconsistent in
part with the Open Records Act. We address the appeals in the
order set out above.
In the first appeal, the Department denied Mr. Reneer's
request to inspect Dr. Ameji's employment contract on the basis
that he was a state employee and, therefore, it was unable to
provide a copy of an "employment contract." This
response is somewhat unclear. If there is no such document, the
agency obviously cannot produce a record that does not exist or
which it does not have. If there is a record reflecting the
services Dr. Ameji is expected to provide under his employment,
it should be made available for his inspection.
The second record requested in the first appeal was a record
reflecting Dr. Ameji's salary. The Department denied access to
this record pursuant to KRS 197.025. Subsection one of that
statute 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 person.
This statute is broad in scope and vests the department with a
great deal of discretion in the release of records maintained at
its facilities. However, this exercise of discretion is not
unfettered. 96-ORD-179. There must be some brief explanation as
to how release of the requested records would constitute a threat
to the institution or institutional staff. This is particularly
true when the requested record, such as the salary of a state
employee, is normally not considered confidential and has been
held in the past to be an open record. OAG 81-98; OAG 79-546.
Such brief explanations have been given by the department in
other open records appeals involving KRS 197.025. In 94-ORD-40,
this office upheld the decision of the warden to withhold the
release of invoices involving the inmate canteen which would
indicate the prices paid for various items to a requesting
inmate. In relying on KRS 197.025, the department stated that
factors such as the inmate's criminal record, his previous acts
of defrauding persons and firms, and his knowledge of computers
led it to the conclusion that release of the invoices would
constitute a threat to any company or person named in the
material. In OAG 92-26, this office upheld the Correction
Cabinet's denial of an inmate's request to inspect all transfer
recommendation and authorization forms in his institutional file.
In explaining its denial, the Cabinet explained that in many
instances, the transfer forms may refer to conflicts with other
inmates and that release of such information could compromise the
security of the facility.
In 96-ORD-179, this office 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 that
officer. The 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 the release of the requested records would
constitute a threat to security of the institution and
institutional staff, we stated in relevant part:
Clearly, disclosure of records containing personal information
relating to an officer, such as home address, telephone number,
social security number, and marital status, as well as records
reflecting any disciplinary actions against an officer, could
compromise the officer's effectiveness and place him at risk.
In the instant case, the department explained that due to the
nature of the corrections business and its inherent security
concerns, the release of certain employee information may
constitute a threat to the security of the institution or
institutional staff. Release of employee information of the
personal nature mentioned in 96-ORD-179 above clearly represents
an invasion of personal privacy and could obviously place the
prison employee or the institution at risk. This office gives
considerable deference to the department and is reluctant to
second guess its exercise of that discretion. However, release of
a state employee's salary has consistently been held to be a
public record. The department offers no explanation how the
release of an otherwise generally recognized open public record
(a public employee's salary) constitutes a threat to either the
employee or the institution. Absent such an explanation, we
conclude the department improperly withheld the record reflecting
the employee's salary.
In the second appeal, the department, relying on KRS
197.510(7), denied Mr. Reneer's request to inspect the record
which would reflect the method of calculating the amount that
private providers must pay the department for services rendered
to the providers by Dr. Ameji. KRS 197.510(7) provides that all
records, except financial records, maintained by a private
provider are deemed public records and subject to the Open
Records Act. The department acknowledges that it has a copy of
the requested record. However, it argues that the requested
document is a copy of a financial record of a private provider
which is exempt from disclosure under KRS 197.510(7), and that
section precludes the disclosure of the agency's copy of that
record. The department contends that to require it to disclose
its copy, which is exempt from disclosure while in the possession
of the private provider, would defeat the exemption authorized by
KRS 197.510(7).
We have previously stated that if records of a private entity
are in the possession of or retained by a public agency, they
are, in general, subject to inspection. OAG 91-70. See KRS
61.870(2) (public records include those "in possession of or
retained by a public agency"); OAG 89-7. However, in this
instance, the requested record, which the agency has a copy of,
is exempt from disclosure under KRS 197.510(7). Accordingly, we
agree with the department that to disclose this record would
defeat the purpose and direction of that statute and conclude the
record was properly withheld from disclosure.
In the third appeal, the department denied Mr. Reneer's
request to inspect records of every type and description which
provide authorization for any department staff member or the
department to receive payment for providing medical services to
private prison providers, including payment for services provided
to the private prison concern by Dr. Ameji.
In response to the issue raised in the third appeal, the
department views this request as similar to Mr. Reneer's request
in the second appeal above, as a request for records regarding
payment for medical services to a private prison provider which
are exempt under KRS 197.510(7) and the same rationale as stated
above would apply. This response is vague in the sense that it
does not indicate whether the requested records exist and, if so,
their general nature.
In OAG 91-101, this office held that a public agency's
response is insufficient under KRS 61.880(1) if it fails to
advise the requesting party whether the requested record exists.
Citing OAG 86-38, at page 3, we construed the obligation of the
agency relative to a request to inspect documents, noting:
KRS 61.880(1) requires that you advise the requesting party as
to the existence of the documents requested. If the documents
exist and inspection is denied, you should list each document
which the city will not permit the requesting party to inspect
and state how the exception to public inspection relied upon
applies to the particular document withheld from inspection.
Mr. Reneer appears to be asking for authorizations to receive
payment, not payment records themselves. The response should
advise if these records exist. Under KRS 197.510(7), the
department has broad, but not unlimited, discretion to deny
access to financial records. This term should not be so broadly
construed as to make the disclosure requirements a nullity. To
this extent, the response was procedurally deficient. As to the
substantive issue, requested records or copies of financial
records maintained by the private provider, for the reasons noted
above, are exempt from disclosure under KRS 197.510(7).
Accordingly, we conclude these records were properly withheld
form disclosure under authority of that statute.
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
James M. Ringo
Assistant Attorney General
929
Distributed to:
John E. Reneer #26055
Eastern Kentucky Correctional Complex
P. O. Box 636, Dorm 2
West Liberty KY 41472
Tamela Biggs
Staff Attorney
Department of Corrections
State Office Building
Frankfort KY 40601