Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Eastern Kentucky Correctional Complex (EKCC) violated the Open Records Act in denying Fayette Vanderford's request to inspect "still frame pictures on CD that views me on Aug. 27th, 2005 at approx. 10:30 a.m. at Kitchen Gate 29-A-04, from basement control camera. " For the reasons that follow, we conclude, that with the exception of a procedural deficiency, the EKCC properly denied Mr. Vanderford's request for access to the records on the basis of KRS 197.025(1) as incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
By letter dated November 11, 2005 and received by EKCC on November 14, 2005, Mr. Vanderford requested to inspect the following records:
. . . still frame pictures on CD that views me on Aug. 27th, 2005 at approx. 10:30 a.m. at Kitchen Gate 29-A-04, from basement control camera. Note still frame picture's view at kitchen gate location is not a threat to security accord. to Deputy Warden Holbrook of EKCC and also note that still pictures are being used against me for disciplinary actions/hearing therefore giving me more grounds and right to inspect. See highlighted areas of attachments/ Also note that all investigation purposes for CD has been completed by EKCC and prospective law enforcement KSP. See attached documents.
On November 14, 2005, Tami Williams, Records Custodian, EKCC, responded to Mr. Vanderford's request, advising:
Request denied, as before per KRS 61.878(1)(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
This is a repetitive request and will not be responded to again. This office cannot provide you with these pictures as we notified you before. Also this office cannot be responsible of (sic.) any documents that you send with your request form. Please just send the request only, you have sent your write-up along with another inmate's document. These will be returned to you but please do not send documents along with your request.
On November 20, 2005, Mr. Vanderford initiated the instant appeal, claiming that EKCC incorrectly relied upon KRS 61.878(1)(l) in denying his request and that release of the records to him does not pose a threat to the security of the institution. Attached to his letter of appeal was a copy of inmate grievance # 05-763 filed by inmate McClellan Gaines, # 167658 and a copy of a Disciplinary Report Form Part I for an incident that occurred on 9/13/2005 involving inmate Fayette Vanderford.
After receipt of notification of the appeal and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, provided this office with a supplemental response addressing the issues raised in the appeal. In her response, Ms. Dennis advised in relevant part:
At the outset, the Department of Corrections concedes that Ms. Williams' response did not comply with the Kentucky Open Records Act in that Ms. Williams did not cite KRS 197.025(1) in addition to KRS 61.878(1)(l) and provide a brief explanation of how exception (KRS 197.025(1)) applies to the records withheld. Edmundson v. Alig, 926 S.W.2d 856, 858 (Ky. App.1996). See also KRS 61.880(1). I have reminded EKCC records custodians of the importance of citing all provisions that apply when denying an open records request and explaining how the provisions apply to the requested records.
Despite the admitted procedural deficiency, however, the EKCC's denial of access to the requested record should be affirmed. Allowing inmates to possess or inspect records created as a result of security cameras within an adult correctional institution is a security threat because the disclosure of records reveals the facility's methods or practices used in obtaining the video. Still frame photographs created from a security camera will show areas where the camera is capable of focusing and blind spots outside the camera's range. It is impossible for a correctional institution to redact the photographs and eliminate the security concern. See also 04-ORD-017.
Mr. Gaines' inmate grievance, attached to Mr. Vanderford's appeal, is not evidence that disclosure of the requested records poses no security threat. Mr. Gaines' grievance deals with Mr. Gaines' concern that the ability of inmates to view monitor screens constitutes a threat to security of the institution. This separate issue has no relevance to Mr. Vanderford's open records request or appeal. In fact, as of this date, Mr. Gaines has appealed EKCC Warden's decision regarding this grievance to the Commissioner of the Department of Corrections. No final decision has been rendered as of this date. Therefore, EKCC Deputy Warden Holbrook's Informal Resolution does not constitute a final agency decision regarding the grievance. In any event, discretion to deny access to records under KRS 197.025(1) lies with the Commissioner, not EKCC Deputy Warden Holbrook. . . .
For the following reasons, we conclude that the EKCC properly relied upon KRS 197.025(1), in tandem with KRS 61.878(1)(l), in denying Mr. Vanderford access to the requested record.
KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person 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 explaining the operation of this statute, this office in 05-ORD-034, at p. 5, stated:
By enacting KRS 197.025(1), "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where the disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 04-ORD-106; 04-ORD-017; 03-ORD-190. In construing the expansive language of this provision, 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; 04-ORD-106; 04-ORD-017; 03-ORD-190. Application of KRS 197.025(1) "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; 04-ORD-106; 04-ORD-017; 03-ORD-190.
In 04-ORD-017, at page 5, we found that EKCC properly determined that release of the requested videotape would pose a threat to the safety and security of the inmates, staff, and institution, where "[a]llowing inmates to view videotapes made during inmate visitation constitutes a security threat for a prison because the videotape reveals the facility's methods or practices used in obtaining the video" and "the videotape shows areas where the camera is capable of focusing and blind spots outside the camera's range."
Ms. Dennis, in her supplemental response explained that allowing Mr. Vanderford or other inmates to view records created as a result of security cameras within an adult correctional institution would constitute a security threat because the disclosure of records reveals the facility's methods or practices used in obtaining the video and still frame photographs created from a security camera and would show areas where the camera is capable of focusing and blind spots outside the camera's range. Accordingly, we conclude that the institution, in the proper exercise of its discretion, determined that release of the records at issue would pose a threat to the safety and security of inmates, staff, and the institution. 04-ORD-017.
We have consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, supra, p. 5; 00-ORD-125; 96-ORD-179, supra. Accordingly, we have declined to substitute our judgment for that of the facility or the Department of Corrections, and the present appeal presents no reason to depart from this approach. 04-ORD-017. Consistent with the foregoing precedent, we conclude that EKCC did not violate the Open Records Act in denying Mr. Vanderford access to the requested record on the basis of KRS 197.025(1). Our resolution of this dispositive issue renders further discussion of the secondary arguments raised by Mr. Vanderford and EKCC unnecessary.
Finally, the EKCC acknowledged that its response to Mr. Vanderford's request did not comply with the Open Records Act in that it did not cite KRS 197.025(1), in addition to KRS 61.878(1)(l), and failed to provide a brief explanation of how the exception (KRS 197.025(1)) applies to the record withheld, as required by KRS 61.880(1). Ms. Dennis advised that EKCC records custodians had been reminded of the importance of citing all provisions that apply when denying an open records request and explaining how the provisions apply to the requested records. Accordingly, we will not belabor the point here.
A party aggrieved by this decision may appeal it by initiating an 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 proceedings.
Fayette VanDerford, # 163832Eastern Kentucky Correctional Complex, Dorm 6-BL-7200 Road to JusticeWest Liberty, KY 41472
Tami WilliamsRecords Custodian Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Sharon RoseInstitution Coordinator Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40602-2400