24-ORD-055
March 8, 2024
In re: Timothy Arnold/Lee Adjustment Center
Summary: The Lee Adjustment Center (“the Center”) did not violate
the Open Records Act (“the Act”) when it denied a request for records
that, if released, could pose a security threat to the safety of a
correctional facility.
Open Records Decision
Timothy Arnold (“the Appellant”) is an attorney for the Department of Public
Advocacy. During his more recent visits to the Center to provide legal services to his
clients, the Center has required him to walk through a full body scanner, like the
technology used in airports by the Transportation Security Administration (“TSA”)
before travelers may board a flight. Unlike a metal detector, the scanning equipment
can allegedly detect any object carried on a person’s body. After passing through the
scanner a few times, the Appellant submitted a request to the Center for documents
related to his being scanned. Specifically, he sought “any images” taken of him during
the scans and “any documents generated during or in conjunction with the scanning
process.”
The Center provided the Appellant with a few documents that identified him
by name, the dates and times he was scanned, and a few other unintelligible data
points. However, the Center denied the Appellant’s request for images of the scans
themselves under KRS 197.025(1), which is incorporated into the Act by
KRS 61.878(1)(l). The Center also cited Department of Corrections Policy and
Procedures (“CPP”) 9.23, which states that “[e]mployees, visitors, and offenders may
only view scanned images of themselves, if positive results for contraband are
detected and used for criminal or administrative procedures, and as approved for
release by a court order or the facility Warden.” Aside from this exception, no one is
permitted to view the scans. This appeal followed.
The Appellant raises two arguments on appeal. First, he argues CPP 9.23,
which is a policy document, cannot overcome the statutory right of inspection the Actprovides residents of the Commonwealth. Second, he argues KRS 197.025(1) applies
only to requests made by inmates of correctional facilities, not the general public. For
the reasons described below, KRS 197.025(1) does apply to requests made by the
general public, and CPP 9.23 is a proper exercise of the discretion afforded the
Commissioner of the Department of Corrections to determine which records would
pose security threats to correctional facilities if they are released.
To determine the scope of KRS 197.025(1) and to whom it applies, one need
look no further than the text of the statute itself. “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.” KRS 197.025(1) (emphasis added). Thus, despite the
Appellant’s argument to the contrary, the statute explicitly states that “no person”
shall have access to records deemed by the Commissioner to be a security threat. It
is not limited to requests made by inmates. See, e.g., 23-ORD-338 (a civilian’s request
for phone calls between her and an inmate); 22-ORD-210 (an attorney’s request for
personnel records of a correctional facility employee); 22-ORD-038 (an attorney’s
request for video footage); 21-ORD-197 (a constable’s request for surveillance
footage); 19-ORD-089 (an attorney’s request for various records related to her inmate
client); 07-ORD-049 (a request by an employee of another correctional facility for
records of her “pat-down” search). KRS 197.025(1) is incorporated into the Act’s
exceptions under KRS 61.878(1)(l), which exempts from inspection public records the
disclosure of which is prohibited by an enactment of the General Assembly.
The purpose of KRS 197.025(1) is to protect the safety of inmates, employees,
and any other person inside the correctional facility. A correctional facility cannot
control the dissemination of records after their release. While no one suspects the
Appellant would disseminate the records he receives in response to a request, the
same may not be true of everyone else. If the Appellant’s interpretation were correct,
and “no person” really means just inmates, then a close friend or relative could
request records that the inmate could not and mail or otherwise deliver them to the
inmate. Correctional facilities cannot engage in arbitrary determinations about
which requesters are trustworthy and which are not, nor does KRS 197.025(1) grant
them such discretion. Simply put, “no person,” including the Appellant, “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.” KRS 197.025(1).
While KRS 197.025(1) applies to any person, it does not necessarily apply to
every record in the possession of correctional facilities. The question is whether the
Commissioner has “deemed” that release of the records would “constitute a threat to
the security of the inmate, any other inmate, correctional staff, the institution, or anyother person.” Id. Here, there is no doubt the Commissioner has determined that
release of these specific records would constitute a security threat because that
determination has been incorporated into CPP 9.23. However, the records are not
exempt simply because CPP 9.23, an administrative policy, says they are. Rather, the
records are exempt because KRS 197.025(1) gives the Commissioner the authority to
determine which records would pose a security threat if released and which would
not. CPP 9.23, therefore, is proof of the Commissioner’s determination under
KRS 197.025(1), and not independent legal authority on which the Center relies to
deny inspection. Historically, the Office has granted the Commissioner broad
authority under KRS 197.025(1) to determine which records would pose a security
threat if released. See, e.g., 22-ORD-052 (security camera footage and logbooks); 18-
ORD-065 (video or audio recordings of a prisoner transfer); 15-ORD-030 (recordings
of telephone calls); 03-ORD-190 (incident reports); 96-ORD-222 (employee personnel
records); 94-ORD-010 (facility canteen records). The Center explains that release of
the body scan images could reveal weaknesses in the technology, such as where one
could hide contraband to escape detection. In this way, release of the images would
pose the same type of risk as releasing security camera footage, i.e., revealing “blind
spots” in the technology. See, e.g., 22-ORD-099; 19-ORD-089; 16-ORD-042; 15-ORD-
121; 13-ORD-022.
The Office finds no reason to second guess the Commissioner’s determination
that the release of these records would pose a security threat to the most dangerous
point of a correctional facility—its connection to the outside world, and all the
contraband that could flow into the facility from there. Accordingly, the Center did
not violate the Act when it denied the Appellant’s request.
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.
Russell Coleman
Attorney General
/s/ Marc Manley
Marc Manley
Assistant Attorney General#004
Distributed to:
Timothy G. Arnold
G. Edward Henry, II