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 Louisville Metro Government, Department for Youth Detention Services ("YDS") violated the Open Records Act in denying the March 26, 2018, request of Regina Freeman, American Federation of State, County and Municipal Employees, AFL-CIO ("AFSCME"), to view the video recording of YDS Unit 3D from March 10, 2017, at 8:30 p.m. until 10:10 p.m. By e-mail directed to Ms. Freeman later that day, Robin Berry, Louisville Metro Government, Office of Records Compliance, Open Records Division, advised that YDS "has denied your request per KRS 197.025. The footage is a major security concern and may expose juvenile and staff to blind spots and risk of harm. " By undated letter, AFSCME General Counsel Andrew D. Burcham initiated this appeal on behalf of Ms. Freeman.
Upon receiving notification of Mr. Burcham's appeal from this office, Assistant Jefferson County Attorney Annale E. Renneker responded on behalf of YDS. Ms. Renneker first acknowledged that YDS relied on the wrong Kentucky Revised Statute as KRS 197.025 "applies to detention facilities under the umbrella of the Department of Corrections. However, the same effect of KRS 197.025 is found in another statute governing the Department of Juvenile Justice [DJJ] and those agencies under its umbrella [,] KRS 15A.0651." 1 Quoting the language of KRS 15A.0651(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), Ms. Renneker explained that YDS provides juvenile detention services to Louisville Metro. "YDS is also a contractor of [DJJ] and thus, subject to the provisions of KRS 15A.0651. The applicability of KRS 15A.0651(2) is not limited to a certain class of requestors; rather, the plain language of the statute makes clear that it applies to any person making a request." Ms. Renneker correctly stated that the Attorney General has consistently recognized the legitimate security concerns associated with disclosure of video footage derived from security cameras located in a correctional setting, citing a number of prior Open Records Decisions in support of her client's position.
In light of the "identical language of the two statutes and the similar purposes of both adult correctional facilities and juvenile detention facilities, " YDS argued, "law interpreting and applying KRS 197.025 can be used as guidance [in] applying KRS 15A.0651. Arguably, the [DJJ] commissioner and his or her designee should . . . have even more discretion considering the threat to security is a threat to the security of juveniles. " Ms. Renneker explained "[t]he requested video shows footage of the inside of one of YDS's resident living units. Dr. Ursula Mullins, the Director of YDS, determined the disclosure of the requested video would make the facility, the juveniles, and the YDS staff vulnerable by identifying blind spots. " In addition, disclosure of the requested video "would compromise the confidentiality of the juveniles there." For these reasons, YDS maintained that its denial was appropriate under KRS 15A.0651(2). Notwithstanding the deficiencies in the original response by YDS, this office affirms the agency's ultimate disposition of Ms. Freeman's request.
In relevant part, KRS 61.880(1) provides that a public "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." Accordingly, the Kentucky Court of Appeals observed that "[t]he language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. Accordingly, this office has long recognized that a public agency has the burden of justifying its denial on appeal to the Attorney General or to the circuit court. KRS 61.880(2)(c); KRS 61.882(3). 00-ORD-10, pp. 10-11(citation omitted). A "bare assertion" relative to the basis for denial . . . does not satisfy the burden of proof. . . . Id. , p. 11. YDS responded within three business days per KRS 61.880(1), and briefly explained disclosing the requested video would create a "major security concern and may expose juvenile and staff to blind spots and risk of harm. " However, YDS relied upon KRS 197.025 , and implicitly subsection (2) of that confidentiality provision, which, as YDS acknowledged on appeal, is facially inapplicable to it. Given that YDS acknowledged this error, further discussion is unwarranted.
The critical statutory language found in KRS 197.025(1) and KRS 15A.0651(2) is largely identical and vests the commissioner of the Department of Corrections and the Department of Juvenile Justice, respectively, or his/her designee, with discretion to determine whether disclosure of a record will constitute a security threat. KRS 15A.0651(2), like its counterpart, 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. Accordingly, the line of decisions by this office affirming denials on the basis of KRS 197.025(1) is equally controlling here. For example, in 18-ORD-065, this office engaged in the following analysis:
In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) [KRS 15A.0651(2)] "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." [Footnote omitted.] 07-ORD-168, p. 3 (emphasis added); 96-ORD-204; 2; 03-ORD-190; 07-ORD-049; 15-ORD-010; 17-ORD-064.
[T]his 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.
18-ORD-065, pp. 3-4 (Emphasis added).
YDS, through Director Mullins, "acting in the capacity of designee of the Commissioner of [DJJ], determined, in a proper exercise of its discretion, that disclosing the responsive video . . . recording (s) would pose a credible security threat." Id. , p. 4. As previously noted, the Attorney General has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with discretion regarding this determination. 03-ORD-190, p. 5; 92-ORD-1314; 96-ORD-179; 00-ORD-125; 03-ORD-19. This office finds no reason to depart from this approach in applying KRS 15A.0651(2), which vests the DJJ Commissioner with such discretion, because the legislative intent, as expressed in the plain language of the statute, is the same as that expressed in KRS 197.025(1). YDS did not violate the Open Records Act in denying Ms. Freeman's request on the basis of KRS 15A.0651(2).
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 KRS 197.025(1) 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.
Pursuant to KRS 15A.0651, Access to juvenile facility records:
(1) As used in this section, "juvenile facility" means any facility wherein a juvenile or other person under the authority of the Department of Juvenile Justice is confined.
(2) KRS 61.870 to 61.884 to the contrary notwithstanding, a person shall not have access to a record if its disclosure is deemed by the commissioner of the Department of Juvenile Justice or his or her designee to constitute a threat to the security of the juvenile, the juvenile facility, or any other person.