Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kentucky State Reformatory ("KSR") properly relied on KRS 197.025(1) in denying inmate Uriah Pasha's request received on January 28, 2016, for a "copy of the Incident Reports and E.O.R. -- with attachments that recorded the Termination reasons of Uriah M. Pasha # 092928 visit on January 09, 2016 at 11:25 AM-11:55 AM; and Video Footage of Incident." For the reasons stated below, we find no substantive violation of the Act.
On February 2, 2016, Offender Information Specialist Tara Aldridge informed Mr. Pasha that "[t]he information you requested is still being gathered" and "[o]ur next correspondence will be on 02/05/16." Mr. Pasha initiated an appeal on February 4, 2016. KSR argues that because Mr. Pasha did not provide the facility's final response, this appeal should be found unperfected under our decision in 15-ORD-007, in which Mr. Pasha had initiated his appeal one day prior to expiration of the time allotted for a response under KRS 197.025(7). We distinguish that decision by the fact that here the period of "five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays" expired on February 4, 2016, and KSR had already notified Mr. Pasha that its final response would not be issued before February 5. Although KSR's initial response referenced KRS 61.872(5), that statute only permits further delay where "the public record is in active use, in storage or not otherwise available" and the agency gives "a detailed explanation of the cause." Those conditions do not appear to have been met here; we therefore consider this appeal on its merits.
On February 19, 2016, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, advised that all records "except for the security video and EOR" had been provided to Mr. Pasha. Since the appeal is moot as to records which were provided under 40 KAR 1:030, Section 6, we consider only the request for the security video and Extraordinary Occurrence Report (EOR). Ms. Barker advises that no EOR was created for the matter in question. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no substantive violation of the Act as to the nonexistent EOR. We note, however, that Mr. Pasha was never notified in writing that no EOR existed. Ms. Barker indicates: "Counsel has informed KSR staff that an explanation for records that do not exist needs to be provided in writing instead of just orally as was done in this case."
The security video was denied as a security threat pursuant to KRS 197.025(1), which provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision 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.
In the facility's February 5 response, Offender Information Supervisor Jodi Williams explained the denial in this manner:
[T]he disclosure of records reveals the facility's methods or practices used in obtaining the video. Still frame photographs created from a security camera will show areas where the camera is capable of focusing and blind spots outside the camera's range. It is impossible for a correctional institution to redact the photographs and eliminate the security concern.
Ms. Barker explains that information obtained from the video "may directly affect the security of the institution" and cites numerous prior decisions of this office in which a facility was held to have properly relied on KRS 197.025(1) to deny inmates' requests for surveillance or security recordings, including 04-ORD-017 (video of altercation between inmate and visitor) and 07-ORD-168 (video of altercation between inmate and Corrections Officers).
In subsequent correspondence, Mr. Pasha argues that security concerns should not apply because the outer office visible on the security camera in question is outside the fence at KSR. Ms. Barker responds:
The Kentucky State Reformatory is a medium security correctional institution. Any security camera, no matter its location at KSR, provides information concerning the coverage and capability of the video camera. Providing this information to any inmate incarcerated by the Department of Corrections puts staff, visitors, and inmates at risk of escape and violence by allowing security information to be released that cannot be redacted from the video.
Further, releasing this information to inmates within the institution would provide information concerning the security procedures in the visitation area and increase the risk of the introduction of contraband and dangerous contraband into this secure institution.
In November 2011, the Attorney General analyzed this recurring issue in a separate factual context, concluding in accordance with past decisions that the correctional facility properly exercised its discretion in denying an inmate request for a surveillance video because disclosure "would pose a security threat to other inmates and [facility] staff. " 11-ORD-184. Copies of that open records decision, along with two decisions referenced therein, are attached hereto and their reasoning is incorporated in our present decision. KRS 197.025(1) reflects a legislative commitment to "prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209 (cited in 11-ORD-184). It is the commissioner or his designee whose determination in this regard is controlling. Therefore, we find no violation of the Open Records Act.
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.