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 Penitentiary ("KSP") violated the Kentucky Open Records Act in its disposition of an open records request from inmate Aaron Rivers. We conclude that KSP did not violate the Act.
Mr. Rivers' request, dated May 1, 2013, asked for copies of:
All of my prison mug shots from 1999 until present. These are in the computer. I need to inspect them as they are actually on record. (In full color and size.) The resolution needs to be good enough for me to view as they actually appear. (Don't fold-up please.)
Travis Bradley, Open Records Coordinator, responded on May 7, 2013:
KRS 197.025(1) states KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility 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.
It has been deemed that granting your request for copies of you[r] prison Mug Shots would be a risk to the security of this institution, and for the reasons above, this Open Records Request is denied.
(Emphasis in original.) Mr. Rivers appealed to this office by letter dated May 7, 2013. He argues that the photographs cannot be considered a security risk because the institution requires each inmate to keep a copy of his current mug shot affixed to his identification badge at all times.
On May 15, 2013, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal. She states that "ID photos are not released to inmates outside the use of the inmate's actual ID card because the photo could be used to fabricate identification, facilitate escape, or other uses that may constitute a threat to institutional security. "
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. 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. Under the facts presented, we find that KSP has articulated a credible basis for withholding the photographs in the interest of security. Consistent with the foregoing precedent, we conclude that KSP did not violate the Open Records Act in denying copies of the requested photographs 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:
Aaron Rivers, # 126638Amy V. Barker, Esq.Travis Bradley, OIS I