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 Louisville Metro Corrections Department (Department) violated the Open Records Act in denying the request of Courier-Journal reporters James Wagner and Jason Riley for access to or a copy of "the in-house surveillance video of the altercation between Casey Cougar Mellencamp and Corrections officers on or around June 18, 2006." For the reasons that follow, we affirm Metro Correction's denial of the request.
By letter dated June 22, 2007, Assistant Jefferson County Attorney Suzanne D. Cordery, responding to the request of Mr. Wagner and Mr. Riley, denied the request under authority of KRS 197.025(1), advising:
? Corrections Director Tom Campbell has determined that the release of this videotaped footage would be a threat to the security of jail operations. The Department has determined to conduct video surveillance of this particular area of the jail in the interest of jail security. The Department is responsible for housing and managing a large number of inmates in limited space with limited resources and staff. By the fact of their incarceration, these individuals have already demonstrated behavior that they are unable to conduct themselves appropriately in society. Because inmates in the jail have access to the television news, the Department believes the inmate population would become agitated by watching jail force incidents involving officers and inmates. Additionally, because this videotaped footage is surveillance of the secured inmate entrance into the jail security perimeter, a critical point for jail security, the Department believes that allowing persons access to this footage would enable a person to, over time, study the jail intake officer's search and intake procedures and thereby, on a later arrest, anticipate officer's moves, better hide contraband, or use surprise assault techniques against the intake officer.
Shortly thereafter, The Courier-Journal initiated this appeal, questioning the Department's reliance on the cited exceptions and its position that disclosure of the surveillance tape would pose a threat to the security of jail operations.
After receipt of notification of the appeal, Ms. Cordery provided this office with a response to the issues raised in the appeal. In her response, she reiterated that for the reasons articulated in the letter of denial, the Department does not release to the public videotape footage of the incoming grill area. Elaborating, she advised:
The Director of the Louisville Metro Department of Corrections does not take lightly its responsibility in implementing these provisions to withhold records. The Department does not believe that its position is an exaggerated response to security concerns; but instead, is within the sound discretion of the Department. The Department does make available to the public use of force incident reports unless there is a reason that a specific incident report should be closed.
Further the Department believes that its decision is supported by clear and convincing evidence. The Department manages an inmate population of over 2,000 inmates at three facilities, and averages on a daily basis 200 inmates over available bed space. Most inmates at the main jail are housed in dormitories containing 16 to 24 bunks. Some inmates must sleep on the floor on mattresses until bed space becomes available, thereby increasing the number of inmates in a dorm that must remain confined in a more uncomfortable setting. These inmates watch television many hours of the day.
Finally, the Department processes into the jail an average of 150 persons per day.
For the reasons that follow, we conclude that the Department properly relied upon KRS 197.025(1), in tandem with KRS 61.878(1)(l) 1, in denying access to the requested surveillance tape.
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 enacting this provision," the Attorney General has opined, "the legislature has created a mechanism for prohibiting . . . access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; see also, 07-ORD-039 and authorities cited therein. In construing the expansive language of this provision, the Attorney General has further recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny . . . access to records." 96-ORD-179, p. 3. Application of the provision is not limited to inmate requesters or inmate records, but extends to any open records requester and any institutional records the disclosure of which is deemed to constitute a threat to security. 07-ORD-049.
While the 2002 amendment to KRS 197.025(1), by which the phrase "including any inmate confined in a jail or any facility or any individual on active supervision under jurisdiction of the department" was removed, suggests a legislative resolve to exclude jails from the application of the provision, we are not prepared to depart from the existing line of authority. Given the broad oversight role statutorily assigned to the Department relative to jails, 2 and the common interest of these agencies in avoiding disclosure of records that implicate security concerns, we find that an interpretation of KRS 197.025(1) that does not include jails is legally unsupportable in light of the underlying purpose of KRS 197.025 taken as a whole.
In 04-ORD-017, at page 5, we found that the Eastern Kentucky Correctional Complex (EKCC), in the proper exercise of its discretion, 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." EKCC explained that allowing the requester 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. In 06-ORD-005, we held that EKCC properly denied an inmate's request to inspect still frame pictures on CD that viewed him "at Kitchen Gate 29-A-04" from a basement security camera, on the basis of KRS 197.025, for same reasons set forth in 04-ORD-017. See, also, 00-ORD-190, p. 6, where we recognized that the Northpoint Training Center could withhold access to videos or photographs, if release were deemed to pose a threat to the security of the institution.
In its responses, the Department advised that it had determined to conduct video surveillance of the secured inmate entrance into the jail security perimeter, a critical point for jail security. The Department further explained that allowing the public access to the surveillance footage would enable a person to study the intake officer's search and intake procedures and on a later arrest anticipate an officer's moves, better hide contraband or use surprise assault techniques against the intake officer. In addition, the Department stated that the inmates have access to television news and should the surveillance tape be released to the public and jail force incidents between officers and inmates be shown on television, it believed the inmate population would become agitated.
We have consistently recognized that KRS 197.025(1) vests the commissioner or his designee 3 with broad discretion in making this determination. 03-ORD-190, supra, p. 5; 00-ORD-125; 96-ORD-179, supra. Under facts presented, we find that the Department has articulated a credible basis for withholding the surveillance tape in the interest of security. 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 the Department did not violate the Open Records Act in denying access to the requested surveillance video on the basis of KRS 197.025(1).
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 proceeding.
Jon L. Fleischaker
Tom Campbell, DirectorLouisville Metro Department of Corrections400 South Sixth StreetLouisville, KY 40202
William P. O'BrienDirector of the Civil DivisionJefferson County Attorney's Office1001 Fiscal Court Building531 Court PlaceLouisville, KY 40202
Suzanne D. CorderyAssistant Jefferson County Attorney444 South 5th StreetLouisville, KY 40202
Footnotes
Footnotes
1 Incorporated into the Open Records Act by operation of KRS 61.878(1)(l) which authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 See, for example, KRS 196.030(1)(e) (vesting the Department with the duty to administer and enforce KRS Chapter 441 "relating to the development and enforcement of jail standards; training of jailers and jail personnel, and jail planning and construction"); KRS 441.055 (vesting the Department with the duty to adopt and revise jail standards relating to health and safety, fire safety, operations, recordkeeping, administration, training, treatment of prisoners, medical care, jail equipment and construction, and standards review process); and KRS 441.064 (vesting the Department with the duty to employ jail consultants, inspect jails, and notify jailers of deficiencies).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
3 In this case, the Louisville Metro Department of Corrections acts as designee. Accord 03-ORD-212, 02-ORD-82, 00-ORD-182.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -