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 Kentucky State Penitentiary ("KSP") violated the Open Records Act in denying the March 12, 2019, joint request of Elizabeth A. Arrick of Nichols Walter, PLLC, and Rebeca Ballard DiLoreto of The Institute for Compassion in Justice, Inc. for five separate categories of records pertaining to KSP inmate Larry Lamont White, including video footage of Mr. White from 7:00 a.m. until 10:00 a.m. on March 11, 2019, "from the SSU [Special Security Unit] recreation area of any incident" resulting in a write-up against Mr. White, "video of any interaction between Mr. White and Officer Cartwright or Lieutenant Rogers, and any subsequent events involving Mr. White and any member of KSP staff, including Mr. White's transportation to the segregation unit." In accordance with governing precedent applying KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), this office affirms the denial by KSP of their March 12, 2019, request for the specified video footage as KSP ultimately demonstrated that disclosure would constitute a legitimate security threat.
By undated letter, KSP Open Records Coordinator Catherine Weicht confirmed that KSP received the request on March 18, 2019, and the Department of Corrections ("DOC")(and facilities under its jurisdiction, such as KSP) has five working days in which to issue a written response per KRS 197.025(7). However, she further stated that additional time may be permitted "if the records are in use, in storage or not otherwise available. Additional time is needed to retrieve and review the records requested due to increased ORRs following several lockdowns and power outages at KSP." 1 Ms. Weicht indicated that KSP would issue a final response to Ms. Arrick and Ms. DiLoreto on or before April 2, 2019. In her second undated letter, which Ms. Arrick and Ms. DiLoreto received on April 9, 2019, Ms. Weicht denied access to any responsive video recording per KRS 197.025(1), and KRS 61.878(1)(l) as, "The release of security camera video for an adult correctional institution is a security threat because of the amount and nature of information included in a security video that cannot be redacted." In their April 11, 2019, appeal, Ms. Arrick and Ms. DiLoreto asked this office to render a decision holding that KSP violated the Act in denying their March 12 request and that KSP must provide the requested video recording. 2
Upon receiving notification of the instant appeal, Staff Attorney Julie C. Foster, DOC Office of Legal Services, responded on behalf of KSP. Ms. Foster reiterated the agency's position, stating that DOC has consistently invoked KRS 197.025(1) when denying access to video footage based on the threat to security. "Video footage at the prisons contains information that may directly impact the security of the institution, including revealing the methods and practices used to obtain the video as well as the areas of observation and any blind spots for the cameras. " Referencing a number of prior decisions by this office, dating back to 1996, she noted the Attorney General has also consistently affirmed the denials by DOC of requests for such video footage per KRS 197.025(1) given the broad discretion this provision affords the Commissioner. Lastly, she emphasized that the identity of the requester (s), Mr. White's attorney(s), does not alter the relevant legal analysis. Notwithstanding the unsupported assertion that disclosure of the requested video footage would protect Mr. White, she argued, no such exception exists in either KRS 61.878(1)(l) or 197.025(1).
Resolution of this appeal turns on the application of KRS 197.025(1), which provides, "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." 3 (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." 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); 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 derived 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-169.
Here, KSP, acting in the capacity of designee of the Commissioner of the DOC, determined, in a proper exercise of its discretion, that disclosing the responsive video footage 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; 07-ORD-039; 10-ORD-056; 11-ORD-184. While the requesters' purpose in requesting the recording here "may not have any bearing on facility security, [Ms. Arrick and Ms. DiLoreto] stand[] in the same shoes as any other requester [s] under the Open Records Act. " 10-ORD-055, p. 2. Thus, what is made available to [them] 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 92-30; 96-ORD-209; 97-ORD-8; 05-ORD-025. To avoid release of the recording for purposes that might otherwise threaten the security of the facility, KSP properly invoked KRS 197.025(1) to deny access. See 18-ORD-169. 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 KSP of the request made by Ms. Arrick and Ms. DiLoreto on Mr. White's behalf.
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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