Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Summary : Kentucky State Reformatory determined, in a proper exercise of its discretion, that disclosure of the record in dispute would constitute a legitimate security threat. In camera review of the record in dispute by the Attorney General, conducted under authority of KRS 61.880(2)(c), confirmed that KSR properly relied on KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying the request.
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory ("KSR") violated the Kentucky Open Records Act in denying Stephen R. Nunn's September 8, 2017, request for a copy of the "directive," i.e. , "order," that Deputy Warden Anna Valentine received from the Commonwealth instructing her to confiscate "the DVD discs" relating to Case No. 09-CR-1678, or the communication/letter/memo/e-mail "from any state agency" directing her to "confiscate, delete or erase attorney files." Offender Information Specialist Kim Campbell provided Mr. Nunn with a copy of a responsive e-mail thread between Fayette Commonwealth's Attorney Lou Anna Red Corn and Warden Aaron B. Smith requesting, in relevant part, for KSR to "extract the photos from his legal work," but permit him to maintain "everything else." If there are photos on the DVD, Ms. Red Corn advised, "we request that the DVD be duplicated but exclude the photos." Ms. Campbell advised Mr. Nunn that limited information was redacted from the responsive e-mail per KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), as disclosure of "confidential information within the email would constitute a threat to the security of inmates, the institution, institutional staff, or others and cannot be provided to you."
Upon receiving notification of Mr. Nunn's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. Quoting the language of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), Ms. Barker correctly observed that the "Attorney General's Office has on prior occasions recognized that the discretion afforded the Commissioner in KRS 107.025(1) is broad, and that it will not 'substitute its judgment for that of the correctional facility or the Department of Corrections.' 08-ORD-148 at 4; see also 10-ORD-005, 03-ORD-190." Citing a number of additional prior decisions, KSR noted that denials by jails and prisons of requests for security camera footage have specifically been affirmed on the basis of KRS 197.025(1). In justifying the denial by KSR as to information redacted from the subject e-mail, Ms. Barker explained that "confidential information redacted from the email would put others at risk if it was available to inmate Nunn and others on the yard. The release of the information could cause staff and inmates to be harmed."
Ms. Barker advised that more specifics regarding the content of the subject e-mail could not be explained further without defeating the purpose for which KRS 197.025(1) was being invoked; however, KSR agreed to provide additional information and the unredacted e-mail for in camera review upon request. Unable to conclusively determine whether the information was properly redacted on the basis of KRS 197.025(1), this office requested that Ms. Barker provide us with an unredacted hard copy of the subject e-mail for the limited purpose of in camera review; Ms. Barker promptly complied. Having inspected the record in dispute, this office agrees that disclosure of the redacted information would pose a security threat within the meaning of KRS 197.025(1).
Resolution of this matter turns on the application of KRS 197.025(1), which provides:
KRS 61.884 and 61.878 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.
As previously indicated, this provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are included among those records removed from application of KRS 61.870 to 61.884.
By 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 threat to security." 96-ORD-209, p. 3; 03-ORD-190. 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 inmates access to records." 96-ORD-179, p. 3; 03-ORD-190. Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 03-ORD-190. This office is not at liberty to reveal the content of the lines that KSR redacted from the subject e-mail nor can the Attorney General disclose the additional information that KSR provided to justify its reliance on KRS 197.025(1). Under the facts presented, however, this office finds that KSR ultimately satisfied its burden of justifying the denial of Mr. Nunn's request on the basis of KRS 197.025(1), in accordance with KRS 61.880(2)(c), by explaining the reason that disclosure would constitute a legitimate threat to security and providing this office with a copy of the record for in camera review. This office again declines to substitute its judgment for that of the correctional facility or the Department of Corrections; the denial by KSR is affirmed. See 11-ORD-184; 3-ORD-022; 16-ORD-070.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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.