23-ORD-040
February 21, 2023
In re: James Hightower/Northpoint Training Center
Summary: The Northpoint Training Center (“the Center”) did not
violate the Open Records Act (“the Act”) when it denied a request for
protective custody hearing decisions that would pose a security threat
to the Center if released. KRS 197.025(1).
Open Records Decision
On December 19, 2022, inmate James Hightower (“the Appellant”) submitted
two requests to the Center to inspect a variety of records.1 The Center stamped the
request as received on January 5, 2023 and responded the next day. It denied the
first request because the requested records did not exist. It denied the second request
by citing KRS 61.878(1)(l) and KRS 197.025(1), explaining the release of the
requested records would constitute a security threat. The Appellant then initiated
this appeal, claiming his requests should have been received earlier than January 5,
and thus, the Center’s response was untimely. He also claims the Center improperly
denied his second request.
Although the requests were stamped as received on January 5, 2023, the
Appellant claims his requests should have been received no later than December 26,
2022. However, this Office has consistently found that it is unable to resolve factual
disputes between a requester and a public agency regarding whether or when an
agency received a request. See, e.g., 22-ORD-148; 22-ORD-125; 22-ORD-100; 22-ORD-
051; 21-ORD-163. Consequently, this Office is unable to find that the Center violated
the Act when it claims it received the requests on January 5 and responded the
following business day.
1
The first request sought “authorization of transfer forms” from several dates. The second request
sought “protective custody hearing decisions” from several dates.The Appellant does not challenge the Center’s denial of his first request, in
which it claimed no responsive records existed. However, he does challenge the
Center’s denial of his request for “protective custody hearing decisions” under
KRS 197.025(1). That provision states that “no person shall have access to any
records if the disclosure is deemed by the commissioner of the [Department of
Corrections] or his designee to constitute a threat to the security of the . . . correctional
staff [or] the institution.” KRS 197.025(1) is incorporated into the Act under
KRS 61.878(1)(l), which exempts from inspection public records the disclosure of
which is prohibited by enactment of the General Assembly. Specifically, the Center
states that release of the redacted portions of the “protective custody hearing
decisions” would subject several inmates to “retaliation,” “reveal[ ] camera angles,”
and reveal “information about security threat group (i.e. gang) members.”2
This Office historically has deferred to the judgment of a correctional facility
in determining whether the release of certain records would constitute a security
threat. In particular, this Office has upheld the denial of records based on the same
threats to security identified by the Center. See e.g., 22-ORD-249 (allowing exemption
when releasing records would risk retaliation by inmates against other inmates or
employees); 22-ORD-189 (allowing exemption when records would reveal the areas of
observation and blind spots of security cameras); 21-ORD-229 (allowing exemption
when records would reveal information relating to membership in a gang or “security
threat group”). Accordingly, the Center did not violate the Act when it redacted
portions of “protective custody hearing decisions” that, if released, would pose a
security risk under 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 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
2
On appeal, the Center now admits its initial blanket denial of the Appellant’s request was
improper. Rather than withhold the entire record, the Center redacted portions that posed a security
threat and allowed the Appellant to inspect the unredacted portions of the requested records. Thus,
any dispute regarding the unredacted portions of the records is now moot. See 40 KAR 1:030 § 6.Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#037
Distributed to:
James Hightower #172650
Amy V. Barker
Lydia Kendrick
Ann Smith