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 records request from attorney Philip J. Edwards made on behalf of his client Lisa Flory, who had been incarcerated at LMDC's facility. We conclude that LMDC did not violate the Act.
Mr. Edwards' request, dated December 4, 2012, in pertinent part, asked for copies of:
All video and audio recordings from the Louisville Metro Department of Corrections from 22:00 on 12/31/11 (i.e., 10:00 p.m.) through 03:00 on 1/1/12 (i.e., 3:00 a.m.). This request is limited to the grill/ property room, Breathalyzer room, and adjacent areas.
All video and audio recordings of Lisa Flory at the Louisville Metro Department of Corrections.
?
All ? video and audio recordings regarding the citation, arrest, booking, testing, incarceration, and release of Lisa Flory from 12/31/11 - 1/1/12.
All ? video and audio recordings of whatsoever nature regarding Lisa Flory.
The request was received by LMDC on December 5, 2012. Pursuant to KRS 197.025(7), which allows five (5) business days from receipt to respond to a request for records, Edie Underwood, Corrections Support Coordinator, timely responded on December 12, 2012, in relevant part:
You have requested video and audio recordings from 2200 hours on 12/31/2011 through 0300 hours on 01/01/2012. Additionally, you requested all video and audio recording of Lisa Flory at Louisville Metro Department of Corrections. The requested items are being claimed as exempt on the basis of KRS 197.025(1), incorporated in the Open Records Act by KRS 61.878(1)(l). Director [Mark] Bolton has deemed the release of video tapes as a threat to the security of the facility and personnel. Video taken inside of the facility contains information that may directly affect the security of the institution including methods of practices used to obtain the video, the area of observation and blind spots for the camera etc. Audio recordings do not exist.
(Emphasis in original.) Mr. Edwards appealed to this office by letter dated February 5, 2013. He argues that, in denying him a copy of the video recordings, "the Custodian has employed an overly restrictive and overbroad interpretation of 'threat to security' that lacks any basis in fact."
On February 19, 2013, Brianda A. Rojas of the Office of the Jefferson County Attorney responded to the appeal. She states as follows in regard to the requested video footage:
As the designee [of the Commissioner of the Department of Corrections], Director Bolton deemed such footage as a threat to LMDC's security and claimed it exempt under KRS 197.025(1). Mr. Edwards sought the release of video footage specific to the intake floor of LMDC including but not limited to the areas of the grill/ property room, breathalyzer room and adjacent areas of that floor. Upon review, the 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. The threat to the overall security was deemed present in the release of the intake areas of LMDC and Mr. Edward's original request for such video footage was properly denied under KRS 197.025.
Restrictions to inmate and correctional facility records were set in place for the purposes of maintaining the security of not only the inmates, but also correctional staff and personnel, the facility itself, and any other person. Mr. Edwards minimizes the security concerns which the General Assembly and the Attorney General have recognized as significant.
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.
It has long been the position of this office that KRS 197.025(1) affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates [or other persons] 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. Cf. 13-ORD-022 (accepting like rationale for denying access to detention surveillance camera footage) . 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:
Philip J. Edwards, Esq.Brianda A. Rojas, Esq.Edie Underwood