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 Kentucky State Reformatory ("KSR") violated the Kentucky Open Records Act in its disposition of an open request from inmate Tommy Southard. We conclude that KSR did not violate the Act.
Mr. Southard's request, dated January 22, 2013, and received January 25, 2013, stated as follows:
I want a tape of the video recording of the incident of Sgt. Graham trying to kick me down the stairs on 1-17-13 while in C.P.T.U. C-Wing. I know it was recorded because they reviewed the camera and seen it.
William Mustage, Offender Information Specialist, responded on January 28, 2013:
KSR is denying your request ? under the security exemption(s) as explained below with this response. Based on KRS 197.025(1) and incorporated into the Opens [sic] Records Act by operation of KRS 61.878(1)(l), as disclosure would pose a legitimate security threat.
Allowing inmates to possess or inspect records created as a result of security cameras within an adult correctional institution creates a security threat. See 04-ORD-017 and 08-ORD-082. 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 concerns.
Mr. Southard's appeal to this office was received on February 4, 2013. He states that "[t]hey are only trying to protect themselves & the officer from a[n] excessive force etc., lawsuit."
On February 13, 2013, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal. She essentially reiterates the arguments made by Mr. Mustage.
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." 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 KRS has articulated a credible basis for withholding the surveillance footage in the interest of security. Cf. 13-ORD-022 (accepting similar rationale for denying access to detention surveillance camera footage) . Accordingly, we have declined to substitute our judgment for that of the Department, and the present appeal presents no reason to depart from this approach. 04-ORD-017. Consistent with the foregoing precedent, we conclude that KSR 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:
Tommy Southard, # 159170Amy V. Barker, Esq.William Mustage