Opinion
Opinion By: Andy Beshear,Attorney General;Sam Flynn,Assistant Attorney General General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Penitentiary (hereinafter "KSP") violated the Open Records Act by withholding a 6 x 8 copies of each facial photograph within Kentucky Offender Management System (hereinafter "KOMS") in response to an open records request by an inmate on the basis that disclosure the photographs would compromise the security of the institution. We conclude that KSP did not violate the Act by withholding the facial photographs.
Mr. Brandon R. Bruin is an inmate at the Kentucky State Penitentiary (hereinafter "KSP"). Inmate Bruin initially filed an Open Records request with KSP on October 24, 2016. Inmate Bruin initially requested an up-to-date Resident time card, a list of categorized received disciplinary reports, a copy of each facial photo within KOMS, and a copy of a memorandum from Randy White pertaining to SMU Haircuts and Free Flow Statute. KSP received Inmate Bruin's Open Records request on October 25, 2016.
On November 2, 2016, Inmate Bruin, filed an Open Records appeal with the Office of the Attorney General, asserting that his Open Records request "was only filled in part," and that Kentucky State Penitentiary Records Custodian, Teresa Peters, refused to provide Inmate Bruin with "(1) copy of each facial photo within KOMS," which he requested to be in color, size 6x8. Mr. Bruin thereafter argued that the photographs are important to a civil action suit filed against individuals at KSP. The Office of the Attorney General received Mr. Bruin's Appeal on November 7, 2016.
On November 14, 2016, Ms. Peters provided Inmate Bruin with a memorandum, which was attached as an exhibit to KSP's Response to Inmate Bruin's Open Records Appeal, in which Ms. Peters explained that she had inadvertently failed to advise Inmate Bruin that his request for an additional copy of his photo ID was denied. Ms. Peters explained that KSP would not provide additional copies of Inmate Bruin's photograph, because, KSP claims, Inmate Bruin already possesses a copy of his photograph on his institutional identification card, and for the reason that multiple copies of a computer generated photograph could be used to fabricate identification, facilitate escape, or be used for other purposes that "may constitute a threat to institutional security in accordance with KRS 197.025(1)."
On November 15, 2016, KSP, via-Justice and Public Safety Cabinet, filed their Response to Inmate Bruin's Open Records appeal, wherein KSP asserts that on October 31, 2016, five (5) business days after receiving Inmate Bruin's Open Records request, KSP provided inmate Bruin with the following: "copies of his Residential Record Card, a list of his Disciplinary Reports, and the memorandum from Warden White regarding haircuts and shaves in segregation." KSP acknowledged that Inmate Bruin was not provided with a copy of his facial photos. In its Response to Inmate Bruin's Open Records appeal, KSP further acknowledged that the records custodian did not realize that she had failed to address Inmate Bruin's request for those photographs.
KSP provided a Supplemental Response/memorandum, addressing the photos, to Inmate Bruin on November 14, 2016, and stating that the Department of Corrections/KSP will not provide additional photo ID copies as multiple copies could be used to fabricate identification, facilitate escape, or other uses that may constitute a threat to institutional security, and that the request was denied pursuant to KRS 197.025(1) 1 and KRS 61.878(1)(l). 2 In its November 15, 2016, Response to Inmate Bruin's appeal, KSP reasserts this argument. Further, KSP advised that it has provided all other records except for the facial photographs to Inmate Bruin. Since the appeal is moot as to records which were provided under 40 KAR 1:030, Section 6, we consider only Inmate Bruin's request as it relates to the facial photographs requested.
On November 16, 2016, this Office received an additional letter from Inmate Bruin, dated November 14, 2016. That letter impliedly references KSP's, November 14, 2016, Supplemental Response to Inmate Bruin's Open Records request, wherein KSP refused to provide Inmate Bruin with a copy of his photograph for the reasons above-stated. Inmate Bruin claims that his request for facial photographs of size 6x8 or larger do not constitute a threat to safety or security within KSP because institutional identification cards are size 1x1, and that a 6x8 facial photograph could not be used to falsify such institutional identification cards. Further, Inmate Bruin claims that he did not seek an additional copy of his institutional identification card, rather sought a generated photo copy of his facial photos within KOMS. Mr. Bruin finally argues that the purpose of the photos is not to fabricate identification or facilitate escape, but rather are needed "to show features in reference to civil litigation..."
In support of its argument that Inmate Bruin's request was properly denied pursuant to KRS 197.025(1) and KRS 61.878(1)(l), KSP relies on 03-ORD-190, which states:
In enacting [KRS 197.025(1)], "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a security threat." 96-ORD-209, p. 3.
In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny? access to records." 96-ORD-179, p. 3. Application of the provision is not limited to inmate requesters or inmate records, but extends to any open records requester and any institutional records the disclosure of which is deemed to constitute a threat to security. 07-ORD-049; see also 07-ORD-168
We have consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 00-ORD-125; 96-ORD-179.
KSP determined, in a proper exercise of its discretion, that disclosing the additional photo ID copies as multiple copies could be used to fabricate identification, facilitate escape, or other uses that may constitute a threat to institutional security, inmates and KSP staff. Under facts presented, we find that KSP has articulated a credible basis for withholding the photographs in the interest of security. Accordingly, we have declined to substitute our judgment for that of KSP.
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 must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or anything 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.
2 KRS 61.878(1)(1) provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery: (l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.