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 Police met its statutorily assigned burden of proof in relying on KRS 61.872(6) and KRS 61.878(1)(m)1.g. to deny Roger Lambert's request for a copy of video footage taken during 9:30 and 10:30 a.m. on September 30, 2014, showing what occurred when he visited KSP Post 3. For the reasons stated herein, we find that the KSP has not met its burden of proof.
Mr. Lambert's request was addressed to the commander of Post 3, Bowling Green, and dated November 7, 2014. The response from KSP Official Custodian of Records Emily M. Perkins, based in Frankfort, was dated November 18, 2014. Since the record does not reflect when Mr. Lambert's request was actually sent or received, we cannot determine whether the KSP's response was timely under KRS 61.880(1).
In the November 18 response, the KSP relied upon KRS 61.872(6) "as compliance with the request would create an undue burden on the agency in that public disclosure of the video would reveal the video recorded locations and blind spots, which would endanger the life and physical safety of both sworn police officers and dispatch personnel, and would create a risk of serious physical injury of law enforcement personnel. " Mr. Lambert's appeal to the attorney general was received in this office on December 15, 2014.
By way of response to this appeal, on December 22, 2014, Ms. Perkins reiterated the KSP's position under KRS 61.872(6) that the request "would create an undue burden upon the public agency by exposing a vulnerability in a public office, placing officers and civilian personnel at risk of serious physical injury. " She also added the following argument:
In addition, the KSP relies upon the provisions of KRS 61.878(1)(m)1.g. which states, in relevant part, "The following records when their disclosure will expose a vulnerability referred to in this subparagraph: detailed drawings, schematics, maps, or specifications of structural elements, floor plans, and operating, utility, or security systems of any building or facility owned, occupied, leased, or maintained by a public agency" . (Emphasis added.)
Clearly, public disclosure of the video recording for the lobby of a Kentucky State Police Post creates an undue risk of revealing damaging security information about the public access point to the building. The recording could reveal blind-spots, video quality, zoom capabilities or lack thereof, camera angles, whether hidden cameras exist, and a freeze-frame of the basic security measures at post. Thus, creating an undue risk of serious physical injury to sworn and civilian employees. One needs to look no further than the recent incidents wherein a Pennsylvania State Trooper was ambushed at a State Police Post and killed and the two New York City Police Officers who were assassinated in their patrol car to see that all police officers, just by their employment as a law enforcement officer, place themselves at grave risk every shift they work. We need not disclose any records that place the officers or civilian employees at any higher risk of harm.
On December 30, 2015, Mr. Lambert replied:
. . . I only seek the video that depicts my encounter with the Kentucky State Police at Post 3 on September 30, 2014 between the hours of 930 AM and 1030 AM CDT. I do not seek any recorded images other than those images wherein I was assaulted physically and verbally by KSP Trooper Carlock as I attempted to leave the confines of Post 3. I seek no images or recordings related to the layout or security features of the area or which would otherwise impair the security of KSP personnel at the location.
. . . I went to the KSP Post 3 to inquire as a citizen as to the presence of three (3) KSP Troopers entering upon my residential property . . . on the day in question whereupon my daughter's vehicle (only) was removed by wrecker and impounded at the apparent direction of the KSP. I simply needed to locate the vehicle and make arrangements for the vehicle's return to my daughter if such return was appropriate. I had no ill will or quarrel with the KSP. I simply needed information. I was rewarded for my inquiry by a physical assault by Trooper Carlock and a firm assurance that I would be arrested should I return to the KSP Post 3.
. . . The recording sought should account for less than five (5) minutes of the twenty four hour (24) surveillance for the date in question. . . .
We first deal with the KSP's argument that providing these five minutes of video would be unreasonably burdensome.
KRS 61.872(6) provides in pertinent part: "If the application places an unreasonable burden in producing public records [,] the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence. " (Emphasis added.) The KSP essentially pleads what would amount to a blanket rule of unreasonable burden which would apply to all footage from surveillance cameras in public buildings, as all surveillance cameras are likely to have "blind spots." To adopt such a rule would be inconsistent with the statute's requirement that an agency adduce evidence to support its denial in each particular case.
Com. v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008) ("the unreasonable burden language . . . focuses on a single 'application,' not a group of applications from an entire class of applicants").
The KSP has not attempted to make a showing, by clear and convincing evidence, that releasing the particular footage at issue in this case would reveal the location of hidden cameras or otherwise constitute an unreasonable burden. While we understand that there are inherent risks involved in police work and certainly sympathize with the KSP concerning the tragic deaths of the Pennsylvania State Trooper and two New York City Police Officers discussed in its reply, there is no clear and convincing evidence in the record that KSP Post 3 is exposed to greater danger than any other public building, whether equipped with surveillance cameras or not. Mr. Lambert has requested a few minutes of camera footage showing the interaction between him and Trooper Carlock. The KSP has not articulated why releasing this specific footage would pose an unreasonable burden. Since the KSP has not met the standard of clear and convincing evidence, we find that KRS 61.872(6) has not been properly invoked.
Turning to the KSP's argument under KRS 61.878(1)(m), known as the "homeland security exemption, " we note that any subparagraphs must be read in the context of the general requirements for this exemption, found in subparagraph 1 of KRS 61.878(1)(m). The relevant portions of subsection (1)(m) are as follows:
1. Public records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act and limited to:
. . . .
g. The following records when their disclosure will expose a vulnerability referred to in this subparagraph: detailed drawings, schematics, maps, or specifications of structural elements, floor plans, and operating, utility, or security systems of any building or facility owned, occupied, leased, or maintained by a public agency. . . .
. . . .
2. As used in this paragraph, "terrorist act" means a criminal act intended to:
(Emphasis added.) Therefore, an essential requirement of the exemption is that disclosing the public records would create a "reasonable likelihood of threatening the public safety, " and specifically "by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act" as defined by subparagraph 2. 12-ORD-136; 09-ORD-100; 05-ORD-255; 05-ORD-175. A copy of 09-ORD-100 is attached hereto and adopted as the basis of our decision on this issue.
It is not sufficient to state merely that surveillance camera footage could expose a vulnerability in a building's security system. There must be established a "reasonable likelihood" that the "public safety" is threatened with regard to the ability to prevent, protect against, mitigate, or respond to a "terrorist act. " The KSP has articulated a potential risk of danger to individual officers and employees, but not a reasonably likely threat to the general public.
Nor has the KSP articulated a "terrorist act, " as defined in the statute, to which the public would be made more vulnerable by the disclosure of the camera footage. While attacks against officers or employees of a public agency are always possible, such an attack would not automatically fall into one of the categories of a "terrorist act" listed in subparagraph 2 of KRS 61.878(1)(m). The KSP's assertion that "[w]e need not disclose any records that place the officers or civilian employees at any higher risk of harm" is too broad to be justified by the limited terms of the homeland security exemption.
Most critically, however, we point out that the KSP's singling out of the term "security systems" in subparagraph 1.g. is not supported by the contextual language of the statute. The records shielded by this subparagraph are expressly "limited to" certain types: " detailed drawings, schematics, maps, or specifications of structural elements, floor plans, and operating, utility, or security systems." (Emphasis added.) Footage from a camera, though it may relate to a security system, does not constitute "drawings, schematics, maps, or specifications" of the security system. Subparagraph 1.g. does not apply to the record in question.
In finding that the KSP has not made its case for invoking KRS 61.878(1)(m)1.g. in this instance, we do not exclude the possibility that an appropriate basis for exemption under KRS 61.878(1)(m) could be articulated for surveillance camera footage in a future appeal. Nor, by finding that the KSP has not met its burden of proof under KRS 61.872(6), do we determine that no case could be made for the release of camera footage as constituting an unreasonable burden under appropriate circumstances. In this appeal, however, we find a failure of proof on these issues.
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 proceeding.