Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metropolitan Department of Corrections ("LMDC") violated the Kentucky Open Records Act in its disposition of an open request from inmate Ben Richard, Jr. We conclude that LMCC did not violate the Act.
Mr. Richard's request, dated December 3, 2012, stated as follows:
I request to inspect the following recording (s): All phone records from the following phone number (502) 893-2260 and the following days on the following phone number (502) 921-4141 October 2010 through April 2011. I also need the phone recording of the following number (502) 543-7274 for the month of June of 2011 through December 2011. These phones are located at H-6 south 1.
I would like to have a copy of the video the [ sic ] holding area on August 24, 2011 of Division 7 outside of court room 802. The camera that faces the elevator.
Edie Underwood, Corrections Support Coordinator, responded on December 11, 2012:
Your request for phone records and phone recordings is being denied based on KRS 197.025(1) and (2) incorporated into the open records act by virtue of KRS 61.878(1)(l). The records do not contain a specific reference to you and further Director Bolton deems the release of phone record logs and recorded phone calls as a threat to the security of the institution because it would provide a means by which an inmate could learn which phone calls are being monitored.
Your request for a copy of the video of the holding area of Division 7, outside of Court Room 802 is denied. The Jefferson County Sheriff's Department is the custodian of this record, the release of such is deemed a threat to security and exempt under KRS 197.025(1)[.]
Mr. Richard appealed to this office by letter dated December 19, 2012, which was received on January 4, 2013. He adds: "[t]he information that I am requesting is exculpatory in nature, and would help me prevail in a post conviction action that is presently pending. The calls requested were between my attorney, my family, and me."
On January 22, 2013, Brianda A. Rojas of the Office of the Jefferson County Attorney responded to the appeal. She states as follows:
In his request, Mr. Richard sought the release of all phone records from three non-LMDC phone numbers dating October 2010 through April 2011 and June 2011 through December 2011. ?
Mr. Richard's original request indicates that he seeks all phone records "from" the three different telephone numbers. ? I have been notified by LMDC that [these] are not LMDC phone numbers, but instead are telephone numbers of private individuals and an attorney. Although inmates are allowed to place outgoing telephone calls from public telephones located in designated areas within LMDC, these phones do not receive "incoming" calls. The original request is confusing in that it seeks the disclosure of records and/or recordings of telephone numbers that do not belong to LMDC. LMDC is not the custodian of records for these non-agency telephone records.
Additionally, Mr. Richard's original request fails to specify that his request is for a record that contains a specific reference to him. Mr. Richard fails to specify that the private telephone numbers are specific to him, that only he made those calls and th[at] no other inmate could have placed calls to the telephone numbers indicated. Further, the attorney may be the legal representative of other inmates housed with Mr. Richards [sic] and such calls would not be specific to Mr. Richard. Lastly, LMDC is prohibited from recording or monitoring attorney-client calls.
With regards to the inmate telephone calls placed to private citizen telephone numbers, LMDC may record or monitor such calls, however, LMDC monitors inmate telephone conversation with private individuals as part of its security function. Not every call made by inmates are [sic] recorded. Further, I have been informed that LMDC shows no records of calls made by Mr. Richard to the three numbers provided in his request. In sum, the request for audio recording were [sic] properly denied pursuant to KRS 197.025(1) and (2).
Mr. Richard also requested footage from video cameras located in the holding area facing the elevator outside of Jefferson County Circuit Court, Division 7. Although LMDC is not the designated custodian of such videos, the release of such footage would constitute a threat to the security of the Courts, its personnel and LMDC officers. Director Mark Bolton has deemed such footage as a threat to security and claimed it is exempt under KRS 197.025(1). Release of the requested video footage is a security threat because it can be viewed by others to assess the technology and/or procedures used by LMDC and other law enforcement agents in the handling of inmates, it may be viewed to develop strategies used to overtake LMDC's officers and possibly other law enforcement agents, and the footage can be used to study the camera's range of sight -- what is within the camera's view and the areas outside of the camera's image which can be used to smuggle contraband and other strategies of takeover or escape. KRS 197.025(1) clearly states that if the disclosure is deemed to constitute a threat to the security of inmates, correctional staff, the department or any other person, no access to any of the records shall be given.
(Emphasis added.)
Since the requested telephone records do not contain a specific reference to Mr. Richard, he is not entitled to inspect them under the terms of KRS 197.025(2), which provides that "KRS 61.970 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual." 03-ORD-150; 09-ORD-057. This statute applies to the LMDC. 09-ORD-183. Accordingly, the LMDC properly denied this portion of the request.
As to the surveillance footage, KRS 197.025(1) provides that "KRS 61.870 to 61.884 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 this case, the LMDC acts as designee of the commissioner. 07-ORD-168, n.3. KRS 197.025(1) affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security." 96-ORD-179. Under the facts presented, we find that the LMDC has articulated a credible basis for withholding the surveillance footage 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 LMDC 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 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 proceedings.
Distributed to:
Ben Richard, Jr., # 199197Brianda A. Rojas, Esq.Edie Underwood