Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Hopkins County Jail violated the Kentucky Open Records Act in denying Aaron Hart's February 7, 2013, request for a copy of "a video & audio recording of an incident in [sic] December 28th at around 17:00 [to] 18:50 hours in the change out cell from street clothes to Jail clothing [sic]," and his February 10, 2013, request for a copy of "a video from the Hopkins County Jail Evidence Property Room, which is attached to cell # 237," from 12:00 a.m. to 4:00 a.m. on February 9, 2013. In a timely written response, Captain Mike Lewis denied both requests relating to Mr. Hart's "two most [recent] incarcerations at the Hopkins County Jail" on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and prior decisions of this office affirming denials under that authority, including 00-ORD-190, 04-ORD-017, 06-ORD-005, and 07-ORD-039. Captain Lewis justified invocation of this exception per KRS 61.880(1) by explaining that release of any such recordings would reveal the facility's "methods and practices used in obtaining such a video, " and the recordings would also "show areas where the camera is capable of focusing and blind spots outside the cameras [sic] range." He further advised that the "requested recordings are of the intake area," and thus "highly sensitive for security purposes" because "public knowledge of facility procedures presents a danger to facility staff, arresting officers and detainees awaiting intake. " Allowing the public access to surveillance footage, Captain Lewis continued, "would enable a person to study intake officers [sic] search and intake procedures" and on subsequent arrests "anticipate an officer's actions." Such information would enable detainees to better conceal contraband "or circumvent safety procedures designed to protect officer's [sic] safety." Captain Lewis further explained that if surveillance recordings of incidents between staff and inmates were aired on television, the inmate population, which has access to television news, might become "agitated, uncooperative, aggressive or retaliatory in nature against staff. " Mr. Hart initiated this appeal by letter dated February 13, 2012, and Hopkins County Attorney J. Todd P'Pool reaffirmed the agency's reliance on KRS 197.025(1) without further comment. Based upon the following, this office affirms the agency's denial of both requests on the basis of KRS 197.025(1).
Resolution of this matter turns on the application of KRS 197.025(1), which provides:
KRS 61.884 and 61.878 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.
(Emphasis added.) As indicated, 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 included among those records removed from 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. 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." 1 07-ORD-168, p. 3 (emphasis added); 96-ORD-204; 2; 03-ORD-190; 07-ORD-049.
The Hopkins County Jail, acting in the capacity of designee of the Commissioner of the Department of Corrections, determined, in a proper exercise of its discretion, that disclosing the responsive video recording (s) would pose a security threat to other inmates and KSR staff. This office has affirmed denials by jails and correctional facilities of similar inmate requests for security videos in prior decisions. See also 04-ORD-017; 07-ORD-168; 08-ORD-054; 13-ORD-022. As previously noted, the Attorney General has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 92-ORD-1314; 96-ORD-179; 00-ORD-125; 03-ORD-190; 07-ORD-039; 10-ORD-056; 11-ORD-184. The instant appeal presents no reason for this office to substitute its judgment for that of the Commissioner or his designee; accordingly, the denial by the Jail is affirmed.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Distributed to:
Aaron HartMike LewisJ. Todd P'Pool
Footnotes
Footnotes
1 Although the 2002 amendment to KRS 197.025(1), pursuant to which the phrase "including any inmate confined in a jail or any facility or any individual on active supervision under jurisdiction of the department" was removed, "suggests a legislative resolve to exclude jails from application of the provision," this office is not prepared to depart from this well-established line of authority. 07-ORD-168, p. 4. "Given the broad oversight role statutorily assigned to the Department relative to jails, [footnote omitted] and the common interest of these agencies in avoiding disclosure of records that implicate security concerns," this office again finds "that an interpretation of KRS 197.025(1) that does not include jails is legally unsupportable in light of the underlying purpose of KRS 197.025 taken as a whole." Id.