Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northpoint Training Center violated the Kentucky Open Records Act in denying Karl A. Todd's request "to inspect a copy of a video footage from the visiting room on 1/26/08, at 2:25 PM to 2:35 PM. This is in reference to disciplinary report 08-01-354, that I received on 2/03-08." Because the requested videotape does not contain a specific reference to Mr. Todd, NTC properly denied his request on the basis of KRS 197.025(2). Alternatively, NTC established that disclosure of the videotape would pose a legitimate security threat as required to successfully invoke KRS 197.025(1). In accordance with prior decisions of the Attorney General, such as 05-ORD-143 and 04-ORD-017, this office affirms the denial of Mr. Todd's request.
In a timely written response, Andrea M. Windsor, Offender Information Services, responded to Mr. Todd's request on behalf of NTC, advising that a viewing of the video by NTC staff revealed that he was "not on the tape during the time frame requested." Relying upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), Ms. Windsor denied his request because the record he requested "does not contain a specific reference" to him. As further explained by Ms. Windsor:
Allowing inmates to possess copies of videotapes made during visitation has been deemed a security threat by the Warden of this institution, because the videotape reveals the facility's methods or practices used in obtaining the video. Furthermore, the videotape shows areas where the camera is capable of focusing and observing and blind spots outside the camera's range. It is impossible for NTC to redact the tape and eliminate the security concern.
Based upon the foregoing, NTC also denied Mr. Todd's request on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), citing 04-ORD-017 in support of its position.
Arguing that the videotape "needs to be review by a third party," Mr. Todd initiated this appeal by letter dated February 13, 2008. In addition, Mr. Todd finds the explanation provided by NTC to be "conspicuous" because fellow inmate Ronald Mitchell "was told the same thing." 1 Upon receiving notification of Mr. Todd's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of NTC. According to Ms. Dennis, NTC complied with the Act in denying Mr. Todd's request because Ms. Windsor "denied the request on the same day the NTC received the request, cited specific exemptions, and explained how the exemptions applied to the records requested." As further explained by Ms. Dennis:
On the date of the visitation in question, Mr. Todd was observed engaging in inappropriate sexual behavior with his visitor. [Footnote omitted.] Mr. Todd's visitor was observed, by Officer Hobdy, rubbing Mr. Todd's groin area. [Footnote omitted.] No where in the description of the incident is there any reference to a video camera having caught the infraction on tape, nor was this necessary for the institution to charge Mr. Todd with a violation of the prison disciplinary code. The case at hand is most similar to the case decided by this office in 04-ORD-017, where your Office determined that disclosure of a requested videotape of inmate visitation would constitute a legitimate security threat to the security of a correctional institution.
For these reasons, Ms. Dennis contends the denial of Mr. Todd's request should be affirmed; we agree based upon prior decisions of this office interpreting KRS 197.025(1) and (2).
In our view, 05-ORD-143 and 04-ORD-017 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. Because the record in question apparently does not contain a "specific reference" to Mr. Todd, NTC properly denied his request on the basis of KRS 197.025(2) as evidenced by 05-ORD-143 and the authorities upon which that portion of the decision is premised (04-ORD-205 and 04-ORD-071). In the alternative, KRS 197.025(1) authorizes NTC to withhold the requested videotape. Having consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in determining whether disclosure of requested records would constitute a threat to the security of the inmate requester, any other inmate, the correctional staff, the institution, or any other person, this office has declined to substitute its judgment for that of correctional facilities or the Department of Corrections; the instant appeal presents no reason to depart from governing precedent such as 04-ORD-017 upon which NTC properly relied. See 05-ORD-143; 05-ORD-034. As in 05-ORD-143, the agency denial must be affirmed on either basis.
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.
Footnotes
Footnotes
1 By letter dated February 13, 2008, which is nearly identical to Mr. Todd's letter, Mr. Mitchell appealed from the denial of his request which, in large part, mirrors the denial which prompted this appeal; the result in that decision, 08-ORD-053, is consequently the same as the result here.