Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jefferson County Board of Education ("JCBE") violated the Open Records Act in the disposition of two requests from Philip B. Setters on November 16 and November 19, 2015. For the reasons stated herein, we find that JCBE has not met its burden of proof to support its denial of Mr. Setters' requests for copies of video footage based on KRS 61.878(1)(m)1.g.
Mr. Setters' first request was for video surveillance footage from 7:30 a.m. to 4:30 p.m. on November 10, 2015, "capturing the general vicinity of the lobby of the VanHoose Education Center, 1 from Stewart Auditorium to just beyond the elevators roughly adjacent to the front desk" and "the general vicinity of the third-floor hallway from the elevators to the far entrance of the communications office." JCBE responded in writing on November 20, 2015, which was one day outside the requirement of KRS 61.880(1) that a written response be made within three business days after the date the request is received. We therefore find a procedural violation of KRS 61.880(1) as to the first request.
The second request was for "[a]ll video surveillance footage of the lobby of the VanHoose Education Center," along with all video and audio recordings from Stewart Auditorium, from November 18, 2015. In addition, Mr. Setters asked for "bills submitted by Guthrie/Mayes & Associates, Inc. or Guthrie/Mayes Public Relations," "records indicating appointments for the inspection of open records," and "applications to inspect open records" since August 1, 2015, as well as "final action correspondence relating" to those applications. It is our understanding from the record on appeal that Mr. Setters has inspected the written records at issue; therefore as to those records this appeal is moot. Furthermore, it appears that no responsive audio recordings existed. 2 Thus, the only remaining questions relate to the video footage.
In both of its initial responses to Mr. Setters' requests, JCBE stated that it needed additional time to "copy the footage into an electronic format for [his] review"; respectively, until December 2 and December 7, 2015. It was never explained why the video footage would take longer than three days to copy or why it could not be viewed by Mr. Setters onsite within the three-day timeframe. KRS 61.872(5) sets forth limited circumstances under which a public agency may extend the time to produce public records beyond the three business days allowed by KRS 61.880(1):
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
JCBE's unexplained need to "copy the footage into an electronic format" did not clearly fall into one of the categories of unavailability listed in KRS 61.872(5); nor did its responses provide a "detailed explanation of the cause for further delay." Accordingly, we find that KRS 61.872(5) was improperly invoked.
Ultimately, however, JCBE denied both requests for video surveillance footage, with the exception of the footage from inside Stewart Auditorium. On December 2, 2015, records custodian Bonnie Hackbarth stated:
This denial is based on KRS 61.878(m)(1) [ sic ] as our Security Unit has determined that disclosure of that security footage -- which records, among other things, the arrival/ departure times and movements of key personnel and identifies the exact location of security surveillance -- has a reasonable likelihood of exposing vulnerabilities with regard to JCPS's security and response needs assessment to prevent criminal acts against JCPS, its personnel and the public. Disclosure could also expose vulnerabilities to JCPS's security system in general.
Mr. Setters appealed to this office on December 4, 2015. In correspondence dated January 7, 2016, attorney C. Tyson Gorman provided the Security Unit's more detailed recommendation for the denial:
1. Terrorists, criminals, and mentally disturbed individuals can use the video for planning their attack or criminal activity.
2. Related to # 1 above, this video records the arrival, departure and movement times of key personnel such as the Superintendent. This would make key personnel more vulnerable to being targeted.
3. Another vulnerability is that perpetrators of domestic violence and stalkers can monitor their victims and document their arrival and departure times.
In our assessment of KRS 61.878(1)(m), known as the "homeland security exemption, " the only conceivably applicable subsection would be KRS 61.878(1)(m)1.g. The arguments advanced by JCBE in this case essentially amount to an increased risk of potential harm to employees. These are basically the same arguments made by the Kentucky State Police in 15-ORD-041 (copy attached) (holding that video of the lobby of a state police post did not qualify for the homeland security exemption) , and thus we reach the same result. We attach a copy of that decision, along with 09-ORD-100 (setting forth the elements that must be proven to support the homeland security exemption) , and adopt the reasoning of both in reaching the conclusion that JCBE has not met its burden of proof to establish that the security camera footage is exempt from disclosure under KRS 61.878(1)(m)1.g.
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.
Footnotes
Footnotes
1 The VanHoose Education Center is the central office building of JCBE.
2 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.