11-ORD-219
December 27, 2011
In re: Juan Sanders-El/Kentucky State Reformatory
Summary: Kentucky State Reformatory properly relied on KRS 197.025(1), incorporated into the Open Records by KRS 61.878(1)(l), in denying inmate request for videotape.
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Kentucky State Reformatory properly relied on KRS 197.025(1), incorporated into the Open Records Act by KRS 61.878(1)(l), in denying Juan Sanders-El’s November 4, 2011, request for a copy of the “video/audio disc . . . of the staff . . . at KSR using physical force to collect [his] DNA for LMPD.” KSR’s cogent explanation of the potential threat to security posed by disclosure of the recording, coupled with its citation to an extensive list of authorities supporting its position, mandate this resolution of the issue on appeal, Mr. Sanders-El’s arguments to the contrary notwithstanding.
On November 9, 2011, Offender Information Specialist Marc Abelove explained how security at the facility might be compromised by disclosure of the requested record. Citing KRS 197.025(1), as construed in 04-ORD-017 and 08-ORD-082, he stated:
Video 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 area of observation and blind spots for the camera, etc. It is impossible for KSR to redact the tape and eliminate security concern.
In supplemental correspondence directed to this office after Mr. Sanders-El initiated this appeal, KSR amplified on its position through counsel for the Justice and Public Safety Cabinet:
Mr. Abelove explained that releasing the recording to the public would pose a security threat to the institution, inmates, and staff. He elaborated that the process of collecting Mr. Sanders-El’s DNA was carried out pursuant to a Jefferson Circuit Court Order. When the inmate refused to willingly give a sample of his DNA and then became combative, a video camera was used to record the “use of force” required by KSR staff in collecting his DNA. KSR claims that the security exemption is appropriate in this instance because disclosing the video may reveal how the team operates in a use-of-force situation. An inmate could utilize a video recording to analyze the actions taken by the staff in such a situation and ascertain a means of escaping from or prolonging the process, which threatens the security of the institution. The Kentucky Department of Corrections (KDOC) does not disclose inmate restraint policies to the general public, and during an inherently dangerous “use of force” situation, the inmate is restrained. KSR’s denial of Mr. Sanders-El’s request for a copy of the video in question is well within the discretion of the Department of Corrections, and is not an exaggerated response to security concerns.
(Emphasis added.) Counsel cited a series of prior decisions of this office recognizing the propriety of a correctional facility’s reliance on KRS 197.025(1) to deny an inmate’s request for surveillance or security recordings.
In November 2011, the Attorney General analyzed this recurring issue in a separate factual context concluding, as we had in the past, that the correctional facility properly exercised its discretion in denying an inmate request for a surveillance video because disclosure “would pose a security threat to other inmates and [facility] staff.” 11-ORD-184, p. 3. Copies of that open records decision, along with two decisions referenced therein, are attached hereto and incorporated by reference. KRS 197.025(1) reflects a legislative commitment to “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, cited in 11-ORD-184. It is the commissioner, or his designee, whose determination, in this regard, is controlling and not that of the inmate seeking access to the disputed record.
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.
Jack Conway
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#418
Distributed to:
Juan Sanders-El, #131019
Marc Abelove
Linda M. Keeton