Opinion
Opinion By: Jack Conway Attorney, General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been submitted to the Office of the Attorney General in an open records appeal, and this office being sufficiently advised, we find that Kentucky State Reformatory did not violate the Open Records Act in denying Derek Works' March 20, 2015, 1 request for:
[One] tape of recorded calls from May of 2014 thru June 2, 2014, off of the Securus System . . . [and a copy of the same] from December of 2014 to February of 2015 . . . .
KSR relied on KRS 197.025(1) in its timely denial explaining that "[p]hone records and the appropriate documentation of such are created and maintained for the purpose of institutional security. " Past open records decisions issued by this office support KSR's position. 2
Beginning in 2007 and extending to the present, the Attorney General has affirmed correctional facilities' denials of open records requests for recordings of inmate telephone calls based on KRS 197.025(1). 07-ORD-182; 11-ORD-170; 15-ORD-101. A copy of 15-ORD-101 is enclosed. Incorporated into the Open Records Act by KRS 61.878(1)(l), 3 KRS 197.025(1) states:
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 its response to Mr. Works' appeal, KSR identifies a number of security related concerns, themselves protected by KRS 197.025(1) as well as KRS 61.872(6) as construed in 95-ORD-121 and subsequent open records decisions. 4
Through counsel, KSR asserts:
Kentucky Corrections Policies and Procedures ("CPP") 16.3 II.C. provides that "[a]n immediate telephone call may be monitored on a random basis or if there is reason to believe the telephone privilege is being abused in a manner that is in violation of law or detrimental to the security of the institution, employees, or other inmates. " CPP 16.3, available at http://corrections.ky.gov/communityinfo/Policies%0and%20Procedures/Docu…. As KSRstaff stated in the response, recordings of phone calls "are created and maintained for the purpose of institutional security. " Disclosing recorded phone calls would constitute a threat to the security of the institution by providing a means by which inmates could learn which phone calls are monitored.
KSR thus met its statutorily assigned burden of proof in denying Mr. Works' request and appeal in counsel's well-reasoned supplemental response. KRS 61.880(2)(c). We are satisfied that disclosure of the requested records constitutes a threat to institutional security as contemplated by KRS 197.025(1). In addition, disclosure of the records might necessitate an immediate revision of existing policy and practice and therefore fall within the unreasonable burden provision found at KRS 61.872(6).
Either party may appeal this decision 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.
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