Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Montgomery County Regional Jail ("MCRJ") properly relied on KRS 197.025(1) in denying attorney Jonathan B. Fannin's March 7, 2018, request for records relating to the death of Ryan Smallwood during his incarceration there. For the reasons stated below, we find a partial violation of the Act.
Mr. Fannin's request, addressed to Montgomery County Attorney D. Barry Stilz, sought copies of the following:
1. Any video footage showing Montgomery County Jail inmate, Kloud Jones, being booked, searched, patted down, or otherwise processed before being placed in a cell with Ryan Smallwood on the night of November 22, 2017 and/or morning of November 23, 2017.
2. Any video footage of the cel1(s) in which Ryan Smallwood was being held between the hours of 12:00 a.m. and 12:00 p.m. on November 23, 2017.
3. Any documents, photographs, videos, or emails generated as a result of or in connection with the death of Ryan Smallwood at the Montgomery County Detention Center on or about November 23, 2017.
On March 13, 2018, Mr. Stilz replied on behalf of the MCRJ as follows:
Pursuant to KRS 197.025(1), your request for video footage within the Montgomery County Regional Jail ("MCRJ") is denied on the grounds that release of the requested footage would threaten the security of jail operations. First, access to footage illustrating the MCRJ's booking, search, and other intake procedures would compromise the jail's security by allowing people to study those procedures and take advantage of the knowledge gained thereby during a subsequent incarceration, for example by better concealing contraband or using surprise assault techniques against jail deputies. Moreover, release of the footage would expose the facility's methods and practices for conducting surveillance, including areas of focus and blind spots that are not captured via video, which would further threaten institutional security. Finally, public dissemination of video footage within the MCRJ, which depicts inmates other than Mr. Smallwood, creates a risk that inmates who become aware of its distribution and/or contents will become agitated.
The third category of records you requested includes materials that are exempt from the Open Records Act, including but not limited to pursuant to KRS 61.878(1)(a), (h), (i), and (l) and KRS 197.025(1). We are in the process of separating the exempt and non-exempt materials and anticipate that the non-exempt records (or portions thereof) that are responsive to your request will be available for your inspection no later than March 20, 2018.
Mr. Fannin initiated this appeal on March 13, 2018.
With regard to the MCRJ's response to item 3 of the request, we find the statements inadequate to comply with the Open Records Act. KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884 , shall determine within three (3) days , excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision . An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action .
(Emphasis added.) This provision contemplates that a final disposition of a request for public records is to be made by a public agency within three business days. Pursuant to KRS 197.025(7), this period is extended to five business days for penitentiaries and detention facilities: 1
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.
(Emphasis added.)
Although KRS 61.872(5) allows for additional time where a record is "in active use, in storage or not otherwise available" and "a detailed explanation of the cause is given for further delay," the MCRJ did not claim that any records were unavailable. Therefore, assuming Mr. Fannin's request was received prior to March 13, 2017, the MCRJ failed to make a timely disposition of this portion of Mr. Fannin's request. Furthermore, the MCRJ's response failed to explain the applicability of any of the statutory exceptions it cited, as required by KRS 61.880(1). We accordingly find a procedural violation of the Open Records Act with respect to item 3 of the request.
The remainder of Mr. Fannin's request is concerned with video footage from inside the jail. 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 any 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.
This provision reflects a legislative commitment to "prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209. KRS 197.025(1) affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security. " 96-ORD-179.
This office has consistently ruled that security camera footage in correctional facilities may be withheld from public inspection as a security threat on the basis of its tendency to reveal methods and practices used to obtain the footage, as well as areas of observation of the cameras. See, e.g. , 04-ORD-017; 08-ORD-082. In 16-ORD-042, we upheld the denial of access to security footage on the basis of KRS 197.025(1), even in an "outer office" outside the security fence, on grounds that it could reveal "information concerning the coverage and capability of the video camera, " as well as information on security procedures that could "increase the risk of the introduction of contraband. "
Since the facts and legal arguments in this case are substantially similar to those in the cited decisions, we find that the MCRJ has articulated a credible basis for withholding the video footage in the interest of security. In previous appeals, we have declined to substitute our judgment for that of the facility or the Department of Corrections or its designee, and the present appeal presents no reason to depart from this approach. 04-ORD-017. Consistent with the foregoing precedent, we conclude that the MCRJ did not violate the Open Records Act in denying access to the footage on the basis of KRS 197.025(1).
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.
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