Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in denying the request of Bradley Hicks, an inmate at EKCC, to inspect the "videotape [] of [the] alleged incident between [him] and his visitor on 11/17/03 at 11:49 a.m." For the reasons set forth below, we conclude that EKCC properly denied Mr. Hicks access to the requested videotape on the basis of KRS 197.025(1) as incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
In a timely response, Interim Deputy Warden John Holloway denied Mr. Hicks's request "pursuant to K.R.S. 197.025 Paragraph 1, for security concerns." 1 Upon receiving the denial of his request, Mr. Hicks elaborated upon his reasons for requesting the videotape at issue in a "memorandum" directed to Mr. Holloway on December 4, 2003. As explained by Mr. Hicks, he "need[s] to inspect the videotape for [him]self in order to ensure [] a fair and adequate defense to the allegation made against [him] and [his] female visitor, not only for any disciplinary hearing (s), but for [the] appeal process as well." Having reviewed KRS 197.025(1), Mr. Hicks disputed the contention that granting his request would pose a threat to the security of EKCC since he requested "nothing more than the opportunity [] to []view a videotape of [him] and [his] visitor sitting in the visiting room, and any alleged conduct [that occurred] therein." According to Mr. Hicks, "[v]ideotape machines are readily available to [the inmates] , and this videotape could be stored in the Law Library, just as many other court tapes currently are." If necessary, Mr. Hicks "would consent to having the tape edited" to delete any images of other visitors that were in the visiting room during the relevant time frame. Upon receiving no further response, Mr. Hicks initiated this appeal.
On appeal, Mr. Hicks contends that he "clearly set forth justifiable means [by] which the video could be provided for [his] review without [causing] any security breaches, if any such legitimate [security concerns] truly exist." In his view, Mr. Holloway "is attempting to subvert the intent of the Kentucky Open Records Act" because he did not explain how allowing Mr. Hicks to view the videotape would compromise the security of EKCC nor has he suggested alternative measures that would not violate Mr. Hicks's rights under KRS 61.884.
In supplemental correspondence directed to this office following commencement of Mr. Hicks's appeal, Department of Corrections Staff Attorney Emily Dennis elaborated upon EKCC's position. According to Ms. Dennis:
KRS 61.878(1)(l) allows public agencies to exempt certain public records from disclosure when disclosure of the record is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. Deputy Warden Holloway properly denied state inmate Bradley Hicks access to the videotape [of the] incident in the EKCC visiting room on the basis of KRS 197.025[1], made applicable to open records requests pursuant to KRS 61.878(1)(l).
The videotape Mr. Hicks requested to view was made in the EKCC visiting room on 11/17/2003. As a result of the videotape and observations made by Officers A. Conley, D. Elam, B. Litteral, and Lt. D. Neace, Mr. Hicks received a disciplinary write-up for "Inappropriate sexual behavior," a category VI, Item 13 violation of 501 KAR 6:020, Corrections Policy and Procedure (CPP) 15.2. At an EKCC prison disciplinary hearing held 11/24/2003, Mr. Hicks pl[e]d guilty to the charged offense. The EKCC adjustment officer assessed 45 days of disciplinary segregation, suspended for 180 days. In addition, Mr. Hicks lost 60 days [of] good time credit as a result of the offense. The adjustment officer's findings and action were upheld by the EKCC Warden on appeal. (See Exhibits 1 and 2 attached).
Allowing inmates to view videotapes made during inmate visitation constitutes a security threat for a prison because the videotape reveals the facility's methods or practices used in obtaining the video. Furthermore, the videotape shows areas where the camera is capable of focusing and observing and blind spots outside the camera's range.
It is impossible for EKCC to redact the tape and eliminate the security concern. In addition, a ruling requiring a correctional institution to engage in the process of segmenting videotaped incidents captured in the inmate visitation room for any inmate could result in a flood of requests that would place an unreasonable burden on the Department of Corrections and its institutions pursuant to KRS 61.872(6). More than 1600 inmates presently reside at EKCC alone, and any number of inmates may be videotaped in the inmate visitation room during a visitation session. Finally, to suggest that the videotape taken in the inmate visitation room be placed in the inmate law library certainly does not eliminate, but rather[,] magnifies the security problem.
Because disclosure of the requested videotape would constitute a legitimate threat to the security of EKCC for the reasons set forth by Ms. Dennis, EKCC properly relied upon KRS 197.025(1) in denying the subject request as evidenced by the following authorities.
KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, 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.
As correctly observed by Ms. Dennis, this provision 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 among those records excluded from the application of KRS 61.870 to 61.884.
By enacting KRS 197.025(1), "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 03-ORD-190, supra. 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, supra. Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 03-ORD-190, supra.
Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from the public based on KRS 197.025(1) for conflict sheets (OAG 91-136); psychological evaluations of inmates (OAG 92-25, 92-ORD-1314); facility canteen records (94-ORD-40, 96-ORD-209, 97-ORD-25); personnel records of correctional officers (96-ORD-179, 96-ORD-182, 96-ORD-204); facility deficiency reports (96-ORD-222); records confirming that inmates submitted to HIV testing (96-ORD-243); inmate honor dorm waiting lists (97-ORD-33); records documenting the procedures employed in an execution (97-ORD-51); and incident reports (03-ORD-190).
In its supplemental response, EKCC asserts that "[a]llowing inmates to view videotapes made during inmate visitation constitutes a security threat for a prison because the videotape reveals the facility's methods or practices used in obtaining the video" and "the videotape shows areas where the camera is capable of focusing and observing and blind sports outside the camera's range." In a proper exercise of its discretion, EKCC determined that release of the requested videotape would pose a threat to the safety and security of the inmates, staff, and institution. We have consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, supra, p. 5; 00-ORD-125; 96-ORD-179, supra. Accordingly, we have declined to substitute our judgment for that of the facility or the Department of Corrections, and the present appeal presents no reason to depart from this approach. Consistent with the foregoing precedent, we conclude that EKCC did not violate the Open Records Act in denying Mr. Hicks access to the requested videotape on the basis of KRS 197.025(1). Our resolution of this dispositive issue renders further discussion of the secondary arguments raised by Mr. Hicks and EKCC unnecessary.
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. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Bradley HicksEastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
John HollowayRecords CustodianEastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Emily DennisStaff AttorneyDepartment of CorrectionsP.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 Pursuant to KRS 61.880(1), upon receiving an open records request a public agency is required to respond in writing to the requester within three days, excepting Saturdays, Sundays, and legal holidays. "An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." (Emphasis added). Although Mr. Holloway did respond to Mr. Hicks's request in writing within three days and cited the applicable exception, his response was deficient to the extent that he failed to provide a brief explanation of how KRS 197.025(1) applies to the requested videotape, i.e., why release of the videotape would raise "security concerns." As we observed at page 5 of 93-ORD-125, the procedural requirements of the Act "are not mere formalities, but an essential part of the prompt and orderly processing of an open records request." 03-ORD-190. In Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996), the Court of Appeals articulated a demanding standard by which to judge the adequacy of an agency's response to an open records request:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . .[A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Although Ms. Dennis sufficiently elaborated upon Mr. Holloway's position, a response pursuant to 40 KAR 1:030 Section 2 "should be viewed as an opportunity to supplement, and not to supplant, its original denial" as the Act presumes that the agency's initial response "is complete in and of itself." 02-ORD-118, p. 3. In the future, EKCC should be mindful of these intentionally high standards in denying open records requests.