Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex (EKCC) violated the Kentucky Open Records Act in failing to issue a timely written response upon receipt of James Harrison's August 22, 2016, request for documents and video recordings concerning an alleged theft that occurred on May 22, 2016. For the reasons set forth below, we conclude that this office is precluded from considering the appeal.
By letter dated merely "September, 2016" and received on September 20, 2016, by this office, Mr. Harrison appealed the response of EKCC to his Open Records request, stating that the "documents and cameras associated with this incident requested for inspection and review which has not been provided."
Mr. Harrison's request was for:
1. Theft report filled out around June or July 2016, concerning items taken from his cell;
2. The disposition of the theft report he had made in June or July, 2016;
3. All conflict resolutions reflecting his name;
4. The wing camera and the core camera;
5. Any disposition Lt. Johnny Haven took upon being provided with receipts in July;
6. Any other documentation concerning this incident and all documents reflecting his name associated with this incident;
7. Disposition of the actions of Correctional Officer Spence;
8. Disposition of the officer she (Correctional Officer Spence) called.
After receiving notification of Mr. Harrison's appeal from this office, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of EKCC. Ms. Barker advised that Mr. Harrison's request was stamped as received on August 25, 2016. Ms. Barker's response to the Open Records appeal correctly stated that KRS 197.025(7) 1 affords EKCC five business days in which to issue a written response upon receipt of a request properly submitted under the Act. Ms. Barker provided information and records documenting EKCC's response to Mr. Harrison's Open Records request.
Attached to Ms. Barker's response were two memorandums from Sonya Wright, Offender Information Specialist. One was dated August 29, 2016, and responded to that portion of Mr. Harrison's request for video recordings (the wing camera and the core camera listed in Item 4 above) by denying the request. In her memorandum to Mr. Harrison, Ms. Wright cited to KRS 61.878(1)(l) and KRS 197.025(1) as the statutory bases for prohibiting inmate access to records deemed to constitute a threat by the EKCC Warden. That memorandum explained that allowing inmates to view or possess the requested video recordings had been deemed a security threat by the Warden because the video recordings reveal the facility's methods or practices used in obtaining the video.
In a second memorandum, dated August 30, 2016, Ms. Wright, responded to all the records requested by Mr. Harrison (other than Item 7 and 8, regarding Correctional Officer Spence). Ms. Wright's response to Mr. Harrison provided the theft report and disposition (Items 1 and 2 above), and the conflict resolutions (Item 3 above). Ms. Wright's timely response also indicated that there were no records found after a search for the records described in Items 5 and 6 above.
Ms. Barker's response to the appeal also included a written statement from Correctional Officer Spence, dated September 30, 2016, that confirmed that she did not place any phone calls regarding the theft, and that the only record created was the theft report (contained at Item 1 above). Ms. Spence's statement confirms that there were no records responsive to Items 7 and 8 above.
Ms. Barker's response to the appeal noted that EKCC had timely responded to Mr. Harrison's request for records and had allowed him to inspect the responsive records. Further, Ms. Barker asserted that Mr. Harrison had failed to perfect his appeal by not attaching the agency's response to his appeal to this office. KRS 61.880(2)(a) establishes the requirements and timeline for an Open Records Appeal. That statute provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
Ms. Barker also cited this office's own regulation, 40 KAR 1:030 Section 1, in support of her position. That regulation states:
Section 1. Form. The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2) , requiring the submission of a written complaint to the public agency and the public agency's written response , if the agency provided a response, and KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial. (Emphasis added).
As Mr. Harrison failed to provide EKCC's responses to his Open Records request, this office is precluded by its own regulation from considering his complaint because he failed to provide the agency's written response as required by 40 KAR 1:030, Section 1. See 15-ORD-005, 15-ORD-006, and 15-ORD-035.
Ms. Barker also provided additional arguments to demonstrate that, even if Mr. Harrison had perfected his appeal, EKCC did not violate the Open Records Act. In respect to the request for a copy of video recordings, Item 4 in Mr. Harrison's request, that request was denied pursuant to KRS 197.025(1). That statute is incorporated into the Open Records Act through KRS 61.878(1)(l). KRS 197.025(1) exempts records from disclosure if release of such records would pose a security threat. As noted in Ms. Wright's August 29, 2016, response to Mr. Harrison, allowing inmates to view or possess the requested video recordings has been deemed a security threat by the Warden because the video recordings reveal the facility's methods or practices used in obtaining the video recordings. Ms. Barker further remarked that it is impossible to redact the video recording and eliminate the security concerns, and that this office has previously upheld the nondisclosure of prison video recordings. See 15-ORD-010, 13-ORD-033, 08-ORD-082, and 04-ORD-017.
Ms. Wright's memorandum of August 30, 2016, confirmed that records responsive to items 1, 2, 3, and 6, had been provided after an appropriate search for each item had been conducted; that Item 4 (video recordings) was denied; and that there were no records responsive to Item 5. Ms. Barker noted that CO Spence did not create a conflict form or make any phone call, so no records were created for those requests (Items 7 and 8) and therefore there were no responsive records for those requests. 2
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 must 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 KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
2 We note that the timely responses to Mr. Harrison from Sonya Wright, Open Record Coordinator, did not affirmatively state that there were no records responsive to Items 7 and 8. It was only in Ms. Barker's response that Items 7 and 8 were addressed by CO Spence's written statement of September 30, 2016. This office has previously addressed the obligations of a public agency when it has no records responsive to an Open Records Request: "[T]he Attorney General has observed that a public agency's 'inability to produce records due to their apparent nonexistence is tantamount to a denial and ? it is incumbent on the agency to so state in clear and direct terms.' 01-ORD-38, p. 9 (other citations omitted). While it is obvious that a public agency 'cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.' 02-ORD-144, p. 3 (emphasis added); 09-ORD-145. In short, '[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate.' OAG 90-26, p. 4; 14-ORD-225.'" 15-ORD-018, p. 3.