Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Penitentiary violated the Kentucky Open Records Act in denying Eddie Vaughn's December 9, 2014 request for "Security footage of 2-26-14, from where I was removed from my cell in six cell house, assaulted by Correctional Staff, and taken to three (3) cell house; and the Move Team video for this cell extraction. " In a timely written response, Offender Information Supervisor Amy Roberts advised Mr. Vaughn that, "Allowing inmates to possess copies of videotapes which include details of the institution [']s security procedures has been deemed a security threat by the Warden of this institution." Paraphrasing KRS 197.025(1) and 61.878(1)(l), Ms. Roberts further explained that, "The videotape reveals the facility's training methods and/or practices used by the facility's Move Team when a disturbance occurs. It is impossible for [KSP] to redact the tape and eliminate the security concerns."
Upon receiving notification of Mr. Vaughn's appeal from this office, Assistant General Counsel Amy V. Barker elaborated upon the agency's position.
Ms. Barker noted that Mr. Vaughn requested both security camera footage and a cell extraction video. KRS 197.025(1), she asserted, "is appropriate for both types of video since disclosing an extraction video may reveal how the team operates in a use-of-force situation." An inmate could use 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," KSP argued, "which threatens the security of the institution." Ms. Barker explained that the Department of Corrections (DOC) does not disclose inmate restraint policies to the general public, and part of the process used during an inherently dangerous "use of force" situation, is to restrain the inmate. Accordingly, denying a request for a copy of a cell extraction video is within the discretion of the DOC under KRS 197.025(1). Citing a line of prior decisions by this office, Ms. Barker correctly observed that the Attorney General has consistently recognized the broad discretion afforded the Commissioner/his designee by this provision. The reasoning behind invocation of KRS 197.025(1) relative to correctional institution video camera footage, Ms. Barker continued, "is that video taken at the prison contains information that may directly affect the security of the institution, including methods or practices used to obtain the video, areas of observation, and areas for blind spots for the cameras. "
Resolution of this appeal turns on the application of KRS 197.025(1), which 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) is incorporated into the Open Records Act by operation of KRS 61.878(1)(1), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are removed from application of the Open Records Act. In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3; 03-ORD-190. Application of this provision "is not limited to inmate records, but extends to "any records" the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 03-ORD-190.
KSP determined, in a proper exercise of its discretion, that disclosing the responsive security footage and cell extraction video would pose a security threat to other inmates and KSP staff. This office has affirmed denials by correctional facilities of similar inmate requests for security videos in prior decisions, including those relied upon by KSP. See 04-ORD-017; 08-ORD-054; 11-ORD-184. The instant appeal presents no basis to depart from this line of authority. Here, as in these decisions, the Attorney General declines to substitute his judgment for that of the correctional facility or DOC. The denial by KSP is affirmed on the basis of KRS 197.025(1).
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.