Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Grayson County Detention Center ("GCDC") violated the Open Records Act in denying Dr. Michael Ingram's undated request for "the audio and video footage of my transfer on January [3,] 2018." By letter dated February 9, 2018, Grayson County Jailer Jason Woosley advised that, "[u]nder the authority of KRS 197.025, incorporated into the Open Records Act by KRS 61.878, disclosure of said video/ audio is deemed to constitute a threat to the security of jail operations at [GCDC]." 1 By undated letter, received in the Office of the Attorney General on February 26, 2018, Brittany Ingram, Dr. Ingram's wife, challenged the denial of Dr. Ingram's request. Mrs. Ingram advised that Dr. Ingram was transferred from GCDC to "the Federal Prison Camp in Manchester, Kentucky," on January 3, 2018, around 2:00 a.m. According to Mrs. Ingram, Dr. Ingram left instructions for GCDC to mail his personal items to his residence in Cynthiana, Kentucky. Ingram's personal items, GCDC informed her that Dr. Grayson did not leave any items behind; rather, Dr. Ingram instructed GCDC to destroy it all.
Mrs. Ingram clarified on appeal that Dr. Ingram was "only requesting the footage that pertains to [Dr. Ingram] and his transfer and [they] do not believe" that disclosure would pose a security threat to GCDC. Upon receiving notification of Mrs. Ingram's appeal from this office, Jailer Woosley supplemented his initial response on behalf of GCDC. Jailer Woosley asserted that Dr. Ingram's request was denied for the following reasons:
[T]he video shows the vital workings of the inside, secure area of the [GCDC, ] including but not limited to the layout of the booking area, holding cells and mail entrance and exit hallways and doors to and from the secure area of the facility. The inmate was being prepped to be transported to the United States Marshal Airlift in Lexington[,] Kentucky. By the Marshals [sic] policies, the inmates cannot take any loose or excess property with them during transport. The property in question was being bagged for storage and when the inmate was notified he was not going to be able to take his headphones with him during the transport the inmate became very upset and gave my staff orders to just throw away his remaining property. My staff did exactly as the inmate asked us to do and his remaining property was thrown away? The safety of our staff and inmates is always of great concern and we feel that releasing this video to the general public will compromise our safety.
In accordance with governing precedents applying KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), this office affirms the denial of Dr. Ingram's request.
Resolution of this appeal turns on the application of KRS 197.025(1), which provides that, "KRS 61.870 to 61.884 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." 2 (Emphasis added.) KRS 197.025(1) 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 removed from application of the Open Records Act. 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 requesters or records , but extends to any open records requester and any institutional records the disclosure of which is deemed to constitute a threat to security." 3 07-ORD-168, p. 3 (emphasis added); 96-ORD-204; 2; 03-ORD-190; 07-ORD-049; 15-ORD-010; 17-ORD-064.
Since its enactment in 1990, this office has affirmed the denials of requests by inmates and the public for a variety of records based on KRS 197.025(1), including, but not limited to: conflict sheets (OAG 91-136); psychological evaluations of inmates (92-ORD-1314); facility canteen records (94-ORD-40); personnel records of correctional officers (96-ORD-179); facility deficiency reports (96-ORD-222); records confirming that inmates submitted to HIV testing (96-ORD-243); inmate honor dorm waiting lists (97-ORD-33); records documenting the procedures employed in an execution (97-ORD-51); extraordinary occurrence reports (07-ORD-039); incident reports (03-ORD-190) and security video of a medical ward (10-ORD-055). Significantly, this office has consistently recognized the legitimate security implications of releasing video footage taken from security cameras located in a correctional setting. See 04-ORD-017 (videotape of inmate visitation room); 06-ORD-005 (still frame pictures from security footage of kitchen area); 13-ORD-022 (videotape recording from the holding area located outside of the circuit courtroom); 07-ORD-168; 08-ORD-054; 10-ORD-055; 11-ORD-184; 15-ORD-121.
GCDC, through Jailer Woosley, acting in the capacity of designee of the Commissioner of the Department of Corrections, determined, in a proper exercise of its discretion, that disclosing the responsive video/ audio recording (s) would pose a credible security threat. As previously noted, the Attorney General has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion regarding this determination. 03-ORD-190, p. 5; 92-ORD-1314; 96-ORD-179; 00-ORD-125; 03-ORD-190; 07-ORD-039; 10-ORD-056; 11-ORD-184. While Dr. and Mrs. Ingram's purpose in requesting the recording (s) "may not have any bearing on facility security, [Dr. Ingram] stands in the same shoes as any other requester under the Open Records Act. " 10-ORD-055, p. 2. Thus, what is made available to him must be made available to any member of the public, "including those who might intend to use the videotapes for improper or illegal purposes." Id.; See OAG 82-233; OAG 89-76; OAG 90-50; OAG 92-30; 96-ORD-209; 97-ORD-8; 05-ORD-025. To avoid release of the recording (s) for purposes that might otherwise threaten the security of the facility, GCDC properly invoked KRS 197.025(1) to deny access. The instant appeal presents no reason for this office to substitute its judgment for that of the Commissioner or his designee. Accordingly, this office affirms the denial by GCDC of Dr. Ingram's request.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Pursuant to KRS 61.880(1), GCDC should have cited KRS 61.878(1)(l), incorporating KRS 197.025(1), the specific provisions upon which it relied.
2 Because KRS 197.025(1) provides that "no person" shall have access to "any records" if disclosure thereof is deemed to constitute a security threat, as in this case, the position of GCDC is determinative as to both Dr. Ingram, the requester, and his wife, Brittany Ingram, the appellant. Even assuming that Mrs. Ingram was otherwise potentially entitled to records that Dr. Ingram was prohibited from accessing, "[w]here, as here, sufficient objective indicia exist to establish an identity of purpose between an inmate and a non-inmate, this office [would] not require disclosure of records to the latter, thereby undermining the purpose for which KRS 197.025[(1)] was enacted." 04-ORD-214, p. 6 (citations omitted); 09-ORD-225.
3 Although the 2002 amendment to KRS 197.025(1), pursuant to which the phrase "including any inmate confined in a jail or any facility or any individual on active supervision under jurisdiction of the department" was removed, "suggests a legislative resolve to exclude jails from application of the provision," this office is not prepared to depart from this well-established line of authority. 07-ORD-168, p. 4. "Given the broad oversight role statutorily assigned to the Department relative to jails, [footnote omitted] and the common interest of these agencies in avoiding disclosure of records that implicate security concerns," this office again finds "that an interpretation of KRS 197.025(1) that does not include jails is legally unsupportable in light of the underlying purpose of KRS 197.025 taken as a whole." Id.