23-ORD-344
December 28, 2023
In re: Joshua Powell/Hardin County Detention Center
Summary: The Hardin County Detention Center (“the Jail”) did not
violate the Open Records Act (“the Act”) when it denied a request for
copies of inmate recordings that are purely personal communications
under KRS 61.878(1)(s).
Open Records Decision
On October 12, 2023, Joshua Powell (“Appellant”) requested “[a]ll jail call
recordings and video visit recordings” for a specific inmate from “9/27/2023 to
present.” In its initial response, the Jail denied the request “pursuant to
KRS 61.878(1)(h) as a record of law enforcement agency compiled in the process of an
investigation which could harm the agency investigation by premature release of
information to be used in a prospective law enforcement action.” This appeal followed.
On appeal, the Jail no longer relies on KRS 61.878(1)(h). Instead, it claims the
requested recordings are outside the scope of the Act because “[a]ny recordings of
phone calls or video visits are compiled, maintained and under the exclusive control
of Securus Technologies, a private vendor providing fee-based phone and video
services to inmates.” Thus, the Jail argues, recordings of personal communications
between inmates and third parties are not “public records” within the meaning of the
Act.
Opposing the Jail’s new argument, the Appellant claims the recordings are
“public records” because the Jail’s “employees have access to these records.” But an
agency’s mere “access” to electronic records, without more, does not make them
“public records” for purposes of the Act. See 22-ORD-131. Rather, under
KRS 61.870(2), “public record” includes “all books, papers, maps, photographs, cards,
tapes, discs, diskettes, recordings, software, or other documentation regardless ofphysical form or characteristics, which are prepared, owned, used, in the possession
of or retained by a public agency.”
Here, the Jail denies that any of the requested recordings are “prepared,
owned, used, in the possession of or retained by” it because they remain stored in the
vendor’s system and have not been downloaded by the Jail. Pursuant to
KRS 61.880(2)(c), the Office has reviewed a copy of the Master Services Agreement
(“the Agreement”) between the Jail and Securus Technologies, Inc. (“Securus”), under
which Securus provides telecommunications services to the Jail. Section 8 of the
Agreement states that the Jail “retain[s] custody and ownership of all recordings”
(emphasis added). In contrast, the Agreement only grants Securus “a perpetual
limited license to compile, store, and access recordings [of] inmate calls.”1 Likewise,
the Securus Video Visitation Schedule, which is part of the Third Amendment to the
Agreement, provides that “Customer [the Jail] retains custody and ownership of all
recordings” of inmate video visits while providing Securus a similar limited license.
Thus, according to the unambiguous terms of the Agreement, recordings of inmate
phone calls and video visits are “owned” by the Jail, regardless of whether they have
been downloaded to the Jail’s computers or remain stored in the Securus system.
Under KRS 61.870(2), which uses the disjunctive “or,” records are “public records” if
they are “owned . . . by a public agency,” even if they are “in the possession of” a
vendor. See, e.g., 20-ORD-115 (holding that records in the possession of a private
attorney relating to her representation of a public agency were “public records”
because the file was “owned” by her client, the public agency). Accordingly, the
recordings requested by the Appellant are “public records” under the Act.
Nevertheless, “while all government agency records are public records for the
purpose of their management, not all these records are required to be open to public
access, as defined in [the Act], some being exempt under KRS 61.878.” KRS 61.8715.
Here, the recordings the Appellant requested are not communications of public
agencies or their employees, but personal communications between an inmate and
third parties. As the Supreme Court of Kentucky has noted, “the policy of disclosure
is purposed to subserve the public interest, not to satisfy the public’s curiosity.” Ky.
Bd. of Exam’rs of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d
324, 328 (Ky. 1992). This public interest “focuses on the citizens’ right to be informed
as to what their government is doing.” Zink v. Commonwealth, Dep’t of Workers’
Claims, 902 S.W.2d 825, 829 (Ky. App. 1994). Thus, under KRS 61.878(1)(s),
“[c]ommunications of a purely personal nature unrelated to any governmental
function” are exempt from public disclosure. Because the content of inmates’ private
communications is purely personal and unrelated to any governmental function, the
recordings the Appellant seeks are exempt under KRS 61.878(1)(s), and the Jail did
not violate the Act when it denied the Appellant’s request.
1
This limited license, however, excludes “inmate calls . . . with their attorneys” or calls subject to
other privileges.A party aggrieved by this decision may appeal it by initiating an 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.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#476
Distributed to:
Mr. Joshua Powell
Jennifer B. Oldham, Esq.
Joshua C. Lindblom, Jailer