NOT TO BE PUBLISHED
97-ORD-51
March 26, 1997
In re: Everett C. Hoffman/Department of Corrections
Open Records Decision
This matter comes to the Attorney General on appeal from the Department of Corrections' response to Everett C. Hoffman's January 6, 1997, request to inspect and copy records relating to “plans or procedures to be used at the Kentucky State Penitentiary at Eddyville in the event of an execution.” Mr. Hoffman's request included, but was not limited to:
1. Procedure upon receipt of death warrant by warden
2. Medical care for the condemned
3. Pre-execution procedures, including witnesses, news media access, press releases and demonstrations
4. Condemned inmate housing
5. Property of the condemned
6. Programs and support services for the condemned, including meals, clothing, phone calls, visits and packages
7. Post-execution procedures, including issuance of a death certificate and the execution task force
8. Stays of execution
9. Multiple executions
10. Monitoring of execution plans & procedures
Mr. Hoffman is the executive director of the American Civil Liberties Union of Kentucky, and his request was made under the Open Records Act.
On behalf of the Department of Corrections, staff attorney Tamela Biggs partially denied Mr. Hoffman's request. Ms. Biggs provided Mr. Hoffman with a copy of the Department of Corrections Policy Number 9.5, relating to execution procedures, a two page document which took effect on October 31, 1995, and which consists of five subparts. Part V of the policy establishes guidelines for executions, including the place of confinement, pre-execution procedures, and responsibilities during the death watch and execution. With respect to Mr. Hoffman's request for all other records relating to execution procedures at Eddyville, Ms. Biggs observed:
Any other documents or plans regarding the operation of the penitentiary prior to, during or immediately following an execution are exempt from disclosure pursuant to KRS 197.025, as such disclosure may constitute a threat to the security of the inmate, another inmate, correctional staff who may be required to take an active role in carrying out the sentence, the institution or any other person connected with said proceedings. On those occasions when a “dry-run” has been performed, inmates have attempted to disrupt the procedures; therefore, concerns for the safety and security of staff are well-founded.
This appeal followed.
In a subsequent letter to this office, the Department amended its response. Ms. Biggs indicated that the former institutional execution policy at Kentucky State Penitentiary has been abolished, and a new execution policy is being developed. Noting that the new policy is a “work in progress,” she observed:
Copies which are circulating among Corrections' staff and attorneys in your office are being continually revised. Based upon this fact, we would like to include KRS 61.878(1)(j) as an additional basis for the denial of the release of the execution plan as such plan is a “preliminary” document. With this fact in mind, if Mr. Hoffman still wishes to view portions of the plan, there are some sections which we may make available in their “current” form; the chain of command, visiting schedule, media, the staging area, the execution witnesses, disposition of the inmate's property and post execution procedures.
Ms. Biggs again invoked KRS 197.025 as a basis for denying Mr. Hoffman access to the remaining portions of the plan, reaffirming that release of these records “would impact upon the internal and external security and control of the institution before, during and after, an execution.”
We are asked to determine if the Department of Corrections violated provisions of the Open Records Act in relying on KRS 61.878(1)(j) and KRS 197.025 to partially deny Mr. Hoffman's request for records relating to execution policies and procedures at Kentucky State Penitentiary. For the reasons set forth below, and upon the authorities cited, we conclude that the Department properly relied on the cited exceptions.
In 95-ORD-121, this office analyzed the propriety of a local detention center's decision to withhold its policy and procedure manual. There, we rejected the notion that the manual was a preliminary document, and therefore excluded from public inspection by operation of KRS 61.878(1)(j), because the manual had been adopted by the fiscal court and filed with the Department of Corrections. At page 6 of that decision, we observed:
This then, is the final action of the jail and the fiscal court with respect to jail policies and procedures. “[M]aterials that were once preliminary in nature lose their exempt status once they are adopted by the agency . . . “ as its final action. See, e.g., City of Louisville v Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times, Ky. App., 663 S.W.2d 953 (1983); University of Kentucky v Courier-Journal and Louisville Times, Ky. 830 S.W.2d 373 (1992). It therefore cannot reasonably be argued that all, or any portion, of the . . . Policy and Procedures Manual is exempt from public inspection pursuant to KRS 61.878(1)(j).
Nevertheless, we concluded that pursuant to KRS 197.025 “[t]he jailer, acting as the designee of the Commissioner of the Corrections Department, may [declare] portions of the jail policy and procedure manual . . . confidential if he or she finds that disclosure would imperil personal and public security and administrative order.” 95-ORD-121, p. 7. The Attorney General reasoned:
Confidentiality may, for example, be appropriate for discreet portions of the manual dealing with security and control and safety and emergency procedures. Conversely, portions of the manual dealing with, for example, fiscal management and inmate programs should not be deemed confidential since their disclosure does not adversely affect the security of the facility.
95-ORD-121, p. 7. Thus, although neither KRS 61.878(1)(j) nor KRS 197.025 supported a blanket denial of a request for the detention center's policy and procedure manual, certain portions of the manual could properly be withheld pursuant to KRS 197.025. [1]
We are guided by 95-ORD-121 in resolving the present appeal. Like the policy and procedure manual of a detention center, the execution policy for Kentucky State Penitentiary which is currently being developed implicates personal and public security and administrative order. Pursuant to KRS 197.025, portions of the policy may properly be withheld. That statute provides, in part:
(1) 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.
In construing KRS 197.025, the Attorney General has recognized that the provision “vests the commissioner [, or his designee,] with broad, although not unfettered, discretion to deny . . . access to records the disclosure of which, in his view, represent[s] a threat to institutional security.” 96-ORD-179, p. 3. Moreover, “[t]his 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 security.” 96-ORD-204, p. 2. This office does, however, expect some explanation for the withholding of records based on KRS 197.025. 97-ORD-33, p. 4.
In her original response to Mr. Hoffman's request, Mr. Biggs indicated that on occasions when trial runs have been performed, inmates have attempted to disrupt the execution procedures. In her subsequent letter, she reiterated the Department's concerns about internal and external security and control of the institution before, during, and after execution. This office is reluctant to substitute its judgment for that of the commissioner or his designee in matters relating to execution policy and procedure. Given the highly charged atmosphere which no doubt pervades a facility when an execution is imminent, and heightened concerns for maintaining administrative order in the face of disruptions from both within and without, we believe the Department's reliance on the cited provision is justified. We therefore conclude that the Department of Corrections properly invoked KRS 197.025(1) in partially denying Mr. Hoffman access to execution policies and procedures.
As an additional basis for partially denying Mr. Hoffman access to execution policies and procedures, Ms. Biggs cites KRS 61.878(1)(j), noting that the policy is a “work in progress,” which has undergone, and will continue to undergo, substantial revision until a formal policy is adopted. KRS 61.878(1)(j) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
This office has long recognized that records which are preliminary in nature, such as working drafts that are subject to revision, fall squarely within the parameters of KRS 61.878(1)(j). See, e.g., OAG 89-34 and 94-ORD-38 (holding that draft reports are exempt per KRS 61.878(1)(j) unless formally adopted by the agency); compare, 95-ORD-121 (holding that a policy manual is not exempt per KRS 61.878(1)(j) when it has been formally adopted by agency). Such records forfeit their preliminary characterization, as we have noted, only if they are formally adopted by the agency. The Department of Corrections is not required to withhold those portions of the execution policy and procedure which have not been formally adopted pursuant to KRS 61.878(1)(j), inasmuch as the exemptions to the Open Records Act are discretionary and not mandatory. OAG 79-275; OAG 91-81; 94-ORD-91; 95-ORD-100. However, it may, in its discretion, refuse to disclose all or any portion of its working draft until such time as the execution policy and procedure is finalized.
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
#225
Enclosure
Distributed to:
Everett Hoffman
Executive Director
American Civil Liberties Union of Kentucky
425 W. Muhammad Ali Boulevard
Louisville KY 40202
Tamela Biggs
Staff Attorney
Department of Corrections
State Office Building
Frankfort KY 40601
[1] In addition, the Attorney General held that KRS 61.872(6) authorized the agency to deny a request for portions of the manual as unreasonably burdensome “if release of those records would compromise a significant government interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records, or information contained therein.” 95-ORD-121, p. 8. See discussion at pages 8 and 9 of 95-ORD-121 (copy enclosed).