Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory violated the Kentucky Open Records Act in denying Uriah Pasha's September 15, 2011, request for a copy of "the video recording from the monitor in the hallway of the Captain's Office showing Uriah Pasha # 92028 sitting [on] the bench from 12:00 p.m. to 2:30 p.m." 1 In a timely written response, KSR Offender Information Specialist Marc Abelove denied Mr. Pasha's request on the basis of KRS 197.025(1) , incorporated into the Open Records Act by operation of KRS 61.878(1)(l). On appeal, KSR reiterated its earlier position that "[a]llowing inmates to possess or inspect records created as a result of security cameras within an adult correctional institution" creates a security threat. Citing 04-ORD-017 and 08-ORD-082, KSR argued that "[v]ideo taken at the prisons contains information that may directly affect the security of the institution including methods or practices used to obtain the video, the areas of observation and blind spots for the cameras, etc. It is impossible for [KSR] to redact the tape and eliminate security concerns." The instant appeal presents no reason to depart from the reasoning contained in 04-ORD-017 and 08-ORD-082.
Resolution of this matter turns on the application of KRS 197.025(1), which provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision 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.
As indicated, this provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are included among those records removed from application of KRS 61.870 to 61.884.
By enacting KRS 197.025(1) , "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 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; 03-ORD-190. Application of this 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; 03-ORD-190.
KSR determined, in a proper exercise of its discretion, that disclosing the responsive video recording would pose a security threat to other inmates and KSR staff. This office has affirmed denials by correctional facilities of similar inmate requests for security videos in prior decisions, including those relied upon by KSR both initially and on appeal. See also 08-ORD-054. As previously noted, the Attorney General has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 92-ORD-1314; 96-ORD-179; 00-ORD-125; 03-ORD-190; 07-ORD-039; 10-ORD-056. This office again declines to substitute its judgment for that of the correctional facility or the Department of Corrections; accordingly, the reasoning contained in 04-ORD-017 and 08-ORD-082 is controlling. A copy of each decision is attached hereto and incorporated by reference.
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:
Uriah Pasha, # 92028Marc AbeloveAmy V. Barker
Footnotes
Footnotes