Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory (KSR) violated the Open Records Act in the disposition of Todd Nemeth's March 5, 2008, request submitted to Dr. Barber for inspection and copies of "all letters in my psychological file" which "were sent from me for therapeutic reasons" and his March 6, 2008, request addressed to "To whom it may concern" for a copy of the "video tape (DVD) capturing the Psychological hallway of Dorm 7, in Unit C of the Kentucky State Reformatory," for certain specified dates and times and a copy of all log entries by Internal Affairs, from December 12, 2007, through present, "depicting the inspection of mail of Dr. Julie R. Barber, psychologist, through 'shakedown' process." For the reasons that follow, we find that, with the exception of procedural deficiencies, the KSR properly relied upon KRS 197.025(1) in denying Mr. Nemeth's requests.
By letter of appeal to this office, dated March 17, 2008, Mr. Nemeth advised that the KSR had failed to respond to his request.
After receipt of notification of the appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised, in relevant part:
First, with respect to the letter dated March 5, 2008 to Dr. Barber, the KSR did not violate or otherwise subvert the Kentucky Open Records Act by failing to respond to this letter. At the time Mr. Nemeth wrote this letter, he was under an order from KSR Internal Affairs to cease and [desist] all contact with Dr. Barber. See attachment to Exhibit 1 (Disciplinary Report Form Part 1 - Write Up and Investigation for February 20, 2008 incident) entitled Cease and Desist Order. Mr. Nemeth had previously been found guilty of "pursuing a relationship not related to correctional activities with a non-inmate" with Dr. Barber in December 2007. . . . Dr. Barber had no obligation to respond to Mr. Nemeth because Mr. Nemeth had been ordered to cease all contact with Dr. Barber. KRS 197.025(1) states as follows:
Clearly this is a case where Mr. Nemeth's access constituted a threat to the security of correctional staff; therefore, Mr. Nemeth should have no access to the records possessed by Dr. Julie Barber, particularly since those letters contained several sexually suggestive and inappropriate comments.
Regarding letter (2), dated March 6, 2008, addressed "To whom it may concern," this letter was never received by Laura Vestal, the open records coordinator for the KSR. Ms. Vestal advises that the March 6th letter is a synopsis of a letter dated March 5, 2008 which she received on March 12, 2008, a copy of which is attached. See Exhibit 3. Letter dated March 5, 2008. Unfortunately, at the time this appeal was received, Ms. Vestal had not responded to the March 12, 2008 request, as she was awaiting response from the KSR Internal Affairs Office regarding the request. Mr. Vestal did respond to Mr. Nemeth's March 12, 2008 request as of this date. See Exhibit 4: Letter dated April 1, 2008 from Laura Vestal to Todd Nemeth. I have reminded Ms. Vestal of her obligation to issue responses to open record requests in a timely manner and have further informed her that, in the event of illness, travel or absence from office, or in the event that more information is needed to determine whether a record exists, if the record is in use, storage, or not readily available, a response must still be made in the applicable time period. See KRS 61.872(5) and KRS 197.025(7). The KSR's late response does not appear to have been made in bad faith, but rather reflects the transition in records department staffing that has left the records department with a new supervisor and one less person to fulfill the many duties of the office.
In her April 1, 2008, response to Mr. Nemeth's request received on March 12, 2008, Ms. Vestal advised Mr. Nemeth that his request for the "video tape (DVD) capturing the Psychological hallway of Dorm 7, in Unit C of the Kentucky State Reformatory," for certain specified dates and times, was denied on the basis of KRS 197.025(1), incorporated in the Open Records Act by KRS 61.878(1)(l), explaining:
Allowing inmates to possess copies of videotapes made in inmate residential quarters 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 the KSR to redact the tape and eliminate the security concern. Pursuant to KRS 61.878(1)(l) and KRS 197.025(1), your request for copies of the video surveillance tapes capturing the psychological hallway of Dorm 7, in Unit C of the Reformatory for the dates and times in question is denied. See also 04-ORD-017.
Addressing the portion of the request for the log entries from Internal Affairs depicting the inspection of mail of Dr. Barber, Ms. Vestal advised:
Please be advised there is no log maintained by Internal Affairs for the information you have requested nor is there any requirement to do so.
For the reasons that follow, we conclude that the KSR properly relied upon KRS 197.025(1), in tandem with KRS 61.878(1)(l) 1, in denying access to the requested letters and video tape. "In enacting [KRS 197.025(1)]," 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.
In its response, KSR advised that Mr. Nemeth had been found guilty of "pursuing a relationship not related to correctional activities with a non-inmate" with Dr. Barber and deemed that his access to the requested letters constituted a threat to the security of the correctional staff. In 07-ORD-049, at p.6, we cited the following decisions in which this office had affirmed denials of institutional records under authority of KRS 197.025(1):
Since its enactment in 1990, the Office of the Attorney General has affirmed denials of inmate requests and requests from the public based on KRS 197.025(1) in a variety of factual contexts. See, e.g., conflict sheets (OAG 91-136); psychological evaluations of inmates (OAG 92-25, 92-ORD-1314); facility canteen records (94-ORD-40, 96-ORD-209, 97-ORD-25); personnel records of correctional officers (96-ORD-179, 96-ORD-182, 96-ORD-204); facility deficiency reports (96-ORD-222); records confirming that inmates submitted to HIV testing (96-ORD-243); inmate honor dorm waiting lists (97-ORD-33); records documenting the procedures employed in an execution (97-ORD-51); incident reports (03-ORD-190); entry/exit logs, daily rosters for security staff, and time and attendance reports for security staff (04-ORD-180); name of medical staff member who provided statement that appeared in internal affairs report (06-ORD-016); extraordinary occurrence report (07-ORD-039).
We have consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 07-ORD-168. We have also 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. Under the facts presented here and consistent with the foregoing precedent, we conclude that the KSR did not violate the Open Records Act in denying access to the requested letters on the basis of KRS 197.025(1).
We next address KSR's denial of Mr. Nemeth's request for a copy of the video tape capturing the psychological hallway for certain specified dates and times. 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." 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(1), 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 response, the KSR advised that allowing inmates to possess copies of videotapes made in inmate residential quarters had been deemed a security threat by the Warden of the institution, because the videotape revealed the facility's methods or practices used in obtaining the video and the videotape showed areas where the camera was capable of focusing and observing and blind spots outside the camera's range. Consistent with the foregoing precedent, we conclude that the Department did not violate the Open Records Act in denying access to the requested video tape on the basis of KRS 197.025(1). 04-ORD-017.
We also affirm the KSR's response to Mr. Nemeth's the request for the log entries from Internal Affairs depicting the inspection of mail of Dr. Barber. In its response, KSR affirmatively advised Mr. Nemeth that no such record existed. Obviously, a public agency cannot afford a requester access to records that it does not have or that do not exist. 99-ORD-98. The agency discharged its duty under the Open Records Act by affirmatively so advising and explaining that it was not required to keep such a record. 99-ORD-150. Accordingly, we conclude that the response of the KSR did not violate the Open Records Act, in this regard.
Addressing the procedural issues, KSR acknowledged that it had failed to timely respond to Mr. Nemeth's request, received on March 12, 2008, or provide an explanation for the delay, as required by KRS 197.025 and KRS 61.872, and we will not belabor the point. The failure to timely respond to the request constituted a procedural violation of Act. The agency indicated that it had taken steps to insure that timely responses will occur in the future.
With respect to Mr. Nemeth's March 5, 2008, request submitted to Dr. Barber, the KSR stated that the agency did not violate the Open Records Act in failing to respond to the request because he was under a Cease and Desist Order to cease all contact with Dr. Barber. Although the KSR could properly order an inmate to cease all contact with a non-inmate, under its broad discretion related to the safety, security, and operation of the institution, it still is under a duty under the Open Records Act to timely respond to an open records request. By the same token, the agency could require that an inmate comply with institution policies and procedures before it is required to honor a request. See, for example, 06-ORD-078, where we held that a rejection of an inmate's open records request due to the failure to comply with the policies and procedures relating to inmate open records requests did not violate the Act. However, the failure to respond at all constituted a procedural violation of the Act.
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.
Distributed to:
Todd Nemeth, #205992Laura VestalEmily Dennis
Footnotes
Footnotes
1 KRS 61.878(1)(l) 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."