NOT TO BE PUBLISHED
97-ORD-25
February 19, 1997
In re: Keith D. Phillips/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. Keith D. Phillips's open records request for a copy of the name of every employee of EKCC Inmate Canteen and amount of salary paid each month.
Ms. Linda S. Hill, Fiscal Manager, EKCC, provided Mr. Phillips with a copy of the names of the canteen employees, but denied his request for the employees' salaries, stating the salary records were not made available pursuant to KRS 61.878(1)(a), as an invasion of personal privacy, and KRS 197.025, as the disclosure of the information would constitute a threat to the security of individuals working based on Mr. Phillips's prior record and activities.
In his letter of appeal, Mr. Phillips argues that if the Department of Personnel permits an inmate to obtain information as to the salary of any state employee, he should be able to receive the information as to the salary of an inmate canteen employee.
On January 22, 1997, we sent a “Notification of Receipt of Open Records Appeal” to the Department and enclosed a copy of Mr. Phillips's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs, in relevant part, states:
I have reviewed Mr. Phillips's appeal and have discussed the canteen operation with institutional and Central staff.
Mr. Phillips states that “if the Department of Personnel feels an inmate can obtain a salary of any state employee, then I should be able to receive a salary of an inmate employee.” I have spoken with Mr. Dan Egbers, legal counsel for the Personnel Cabinet, and the representation as made, is not entirely true. If an inmate requests salary information on a Corrections employee, Mr. Egbers confers with Central Office to determine if we have a concern in releasing such information due to the latitude provided by KRS 197.025 and the somewhat unique situation of our employees.
. . .
The institutional setting also raises security concerns in regards to divulging personal information. Some inmates have an almost uncanny ability to take seemingly innocuous information and transform it into a tool through which dissension and conflict are born and profits made. Mr. Phillips appears to have this ability. A partial list of his offenses include: stealing or possession of stolen personal, state or community property; obtaining money, goods, services under false pretenses; fraudulent use of credit cards; theft by deception; criminal possession of a forged instrument; and uttering worthless checks. While in the Department's custody, Mr. Phillips and two accomplices committed several counts of credit card fraud and receipt of stolen property. A review of his file reflects a manipulative history, involving the instigation of conflicts between fellow inmates, staff, as well as between staff and inmates. His file contains numerous documented conflicts with other inmates, resulting in movement from institution to institution in order to protect not only Mr. Phillips but other inmates and staff from retaliatory conduct. The Department is very concerned over any inmate, particularly one with Mr. Phillips's background, having any type of personal information, including wage information of individuals working for either the canteen or the state.
We are asked to determine if EKCC violated the Open Records Act in responding to Mr. Phillips's request. For the reasons which follow, we conclude that the response was proper and consistent with provisions of the Act.
The Department of Corrections relied on KRS 197.025(1) in denying Mr. Phillips's request. That provision, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), [1] 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 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.
The Department explained that disclosure of the personal information which Mr. Phillips seeks, including wage information of individuals working for either the canteen or the state, raised security concerns in the prison setting. The Department stated that this was particularly so in Mr. Phillips's case, setting forth his criminal history and a list of prior offenses in which he had used similar information to instigate conflicts with other inmates, staff, as well as between staff and inmates.
KRS 197.025 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 or inmates.
In this case, we conclude that the Department adequately explained that release of the requested information to Mr. Phillips would constitute a threat to the security of the institution. This office is not in a position to second guess the Department 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 the Department properly relied upon KRS 197.025 in denying access to the requested records.
Because the requested records were properly withheld on the basis of KRS 197.025, we need not address other issues raised in this appeal.
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
#77
Distributed to:
Keith D. Phillips #100289
Eastern Kentucky Correctional Complex
Box 636
West Liberty KY 41472
Linda Hill
Fiscal Manager Eastern
Kentucky Correctional Complex
P. O. Box 636
West Liberty Ky 41472
Tamela Biggs
Staff Attorney
Department of Corrections
State Office Building
Frankfort KY 40601
[1] 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.