Opinion
Opinion By: Andy BeshearAttorney General;Michelle D. HarrisonAssistant Attorney General
Open Records Decision The question presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in denying Virginia Braden's February 8, 2018, faxed request for "[a]ll records within your possession pertaining to Anthony Barbour PID # 461654/DOC # 289077[, including] audio, video, photographic, written, electronic, or digital form." 1 Offender Information Specialist Lisa Douglas promptly requested via e-mail that Ms. Braden "send the request again on a letterhead and outline your need for the request." Ms. Braden advised Ms. Douglas that she would be happy to resend her faxed request if NTC was unable to read it, or, in the alternative, that she would mail the request in a "spirit of cooperation, even though under the law," she was allowed to send it via fax. 2 Having received no further correspondence from NTC, Ms. Braden contacted Ms. Douglas via e-mail dated February 28, 2018, to inquire regarding the status of her February 8 request. By e-mail dated March 1, 2018, Ms. Douglas indicated that Cristela Scanlon, Department of Corrections ("DOC"), had contacted her and indicated that she would forward the requested copies to Ms. Braden. 3
By e-mail directed to Ms. Douglas on March 27, 2018, Ms. Braden confirmed receipt of the records pertaining to Mr. Barbour except for the "visitor log copies" and responsive audio or video recordings. Ms. Braden stated that audio records must exist as NTC records inmate telephone conversations. According to Ms. Braden's (undisputed) timeline, Ms. Douglas notified her by e-mail dated March 28, 2018, that both categories of records were protected from disclosure per KRS 197.025(1). 4 On June 7, 2018, Ms. Braden faxed a follow-up request to DOC regarding the "missing records." Although Ms. Braden did not include a copy of that request with her appeal, she did include a copy of the June 7, 2018, response (signature not visible) by DOC indicating that such records "do not exist in Central Office Offender Information Services." DOC referred her back to NTC and provided her with contact information per KRS 61.872(4).
By letter directed to NTC on July 30, 2018, Ms. Braden reiterated her request for "[a]ll audio and video records of phone conversations in which Anthony Barbour . . . was a participant" and "[c]opies of visitor logs/ registries for visitations with Anthony Barbour." On August 28, 2018, Offender Information Supervisor Kelly Napier denied Ms. Braden's request, explaining, "NTC does not have video call capability for all inmates. " Accordingly, NTC stated that no responsive video recordings exist. Ms. Napier also denied Ms. Braden's request for both visitor logs/ entries and responsive audio recordings based on KRS 61.878(1)(a) and KRS 197.025(1); she further noted that audio recordings of inmate telephone calls "are not maintained for an inmate's entire incarceration." In support of the agency's invocation of KRS 197.025(1), incorporated into the Open Records Act per KRS 61.878(1)(l), 5 NTC stated that disclosure of such audio recordings would "provide a means by which it could be determined which phone calls are monitored. " Likewise, disclosure of the visitor logs/ entries would constitute a security threat "because disclosing visitors can result in confrontations, fights, and other security issues at the prison."
Upon receiving notification of Ms. Braden's December 27, 2018, appeal, Julie Foster, DOC Office of Legal Services, responded on behalf of NTC. Ms. Foster stated that after conducting additional review of Ms. Braden's request, NTC provided Ms. Braden with a copy of any existing responsive visitor logs. Accordingly, issues regarding the requested visitor logs are now moot per 40 KAR 1:030 Section 6, pursuant to which: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 03-ORD-087; 04-ORD-046.
In support of the agency's reliance on KRS 197.025(1), Ms. Foster stated:
Kentucky Corrections Policies and Procedures ("CPP") 16.3 II.C. provides, "[a]n inmate telephone call may be monitored on a random basis or if there is reason to believe the telephone privilege is being abused in a manner that is in violation of law or detrimental to the security of the institution, employees, or other inmates. " Recordings of phone calls are created and maintained for the purpose of institutional security, and disclosing these recordings would constitute a threat to the security of the institution by providing a means by which inmates could learn which phone calls are monitored.
Ms. Foster noted that prior decisions by this office affirm that inmate telephone records can be properly withheld on the basis of KRS 197.025(1).
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, p. 2. Under the facts presented here, this office finds that NTC has identified a legitimate basis for withholding the telephone records in the interest of security. As before, this office declines to substitute its judgment for that of the facility or DOC; the present appeal presents no reason to depart from this approach. 04-ORD-017; 15-ORD-030. NTC did not violate the Open Records Act in denying Ms. Braden's request for audio recordings of Anthony Barbour's telephone conversations on the basis of KRS 197.025(1). 6
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 proceedings.
Footnotes
Footnotes
1 Ms. Braden also faxed a request to the Department of Corrections ("DOC") on February 8, 2018; Cristela Scanlon, Central Office, responded later that day, confirming receipt of Ms. Braden's request for "an entire file . . . on Anthony Barbour." Ms. Scanlon stated, without further explanation, that she would send additional correspondence regarding the request on or before February 15, 2018. The final response of DOC is not of record, nor did Ms. Braden challenge that agency's disposition of her February 8, 2018, request. Accordingly, further discussion is unnecessary.
2 Pursuant to KRS 61.872(2), "Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency." (Emphasis added.) A policy of requiring all requesters to complete a specific form or use company letterhead is contrary to KRS 61.872(2). See 94-ORD-101; 07-ORD-257; 09-ORD-170; 11-ORD-080; 18-ORD-137. Further, the relevant "analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994).
3 KRS 61.872(4) does not "authorize a public agency to deny access to public records in its possession . . . based on an assertion that another agency is the 'primary custodian' of those records." 13-ORD-151 (agency committed no substantive violation of the Act except to the extent it relied upon the concept of "casual possession"); 01-ORD-94; 04-ORD-203; 06-ORD-166; 07-ORD-241; 09-ORD-141; 12-ORD- ; 14-ORD-012; 15-ORD-190; 18-ORD-175. A public agency such as NTC "cannot avoid its duties under the Open Records Act by deferring to another public agency but must, instead, determine within three business days of receipt of a request for records in its custody and control, whether a statutory basis exists for denying the request and, if so, promptly notify the requester [KRS 61.880(1)]. If not, the agency must immediately produce the records for inspection or mail copies upon receipt of prepayment for copies and postage [KRS 61.872(3) and 61.874(1)]." 11-ORD-149, p. 3. Regardless of whether Ms. Braden "may also be able to access the records elsewhere, has obtained identical records from another source, or may possess other documents which contain some or all of the information being sought," NTC cannot evade its duty for this reason. 10-ORD-154, p. 5.
4 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.
5 Among those records excluded from application of the Open Records Act by operation of KRS 61.878(1) are "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l).
6 In light of this finding, consideration of the secondary argument relative to KRS 61.878(1)(a) is unwarranted.