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 Louisville Metro Department of Corrections violated the Kentucky Open Records Act in partially denying Jason Hester's May 7, 2013, request for the "complete Internal Affairs [Professional Standards Unit] Investigation for Lieutenant Norman Norris" regarding Incident Number 2012006571, which occurred on October 29, 2012, and his June 4, 2013, request for the "complete [v]ideo" of that incident and the "complete disciplinary file for Lt. Norman Norris, up to and including disciplinary [sic] issued on Incident Report Number 2012006571, involving inmate James Ferguson." By letter dated May 23, 2013, Public Information Officer Kelly Feiock advised Mr. Hester that LMDC was "providing a copy of Lt. Norris's disciplinary action notice [DAN] which outlines the violations and discipline that was imposed by Director Bolton. The remaining investigative materials and Professional Standard Unit's Report are being claimed as exempt pursuant to KRS 61.878(1)(i) and (j)." Ms. Feiock further advised that Director Bolton "did not base his decision to discipline Lt. Norris on the investigation conducted by the [PSU] but based his decision on his review of the video recording of the incident and the acknowledgement and admission by Lt. Norris during his pre-termination meeting." The PSU investigation and report are preliminary, internal documents that were not adopted by Director Bolton as the final decision maker, she concluded, and therefore retain their preliminary character.
By letter dated June 11, 2013, Ms. Feiock denied Mr. Hester's request for the videotape recording of the October 29, 2012, incident on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), advising that Director Bolton has determined that "release of the of the videotaped footage of the altercation between inmate James Ferguson and Corrections officer Norman Norris would be a threat to the security of jail operations." Because the requested video "would contain footage of security and control techniques used by the officer," LMDC maintained that permitting access "would provide information that could be used to anticipate an officer's moves or use surprise assault techniques against an officer." Also, Ms. Feiock continued, "release of video footage of secured areas of the jail facility could enable a person to determine what is and is not in the camera's view in order to determine areas to hide contraband or conduct an assault on another inmate or jail facility personnel away from the cameras [sic] view." Finally, releasing the video recording "could possibly lead to retaliatory behavior against the officer."
Although LMDC was not implying that Mr. Hester would use the video for any of these improper purposes, it correctly noted that the Act "does not contain any limitation as to re-release or any conditions as to the use of the record." With regard to Lt. Norris's disciplinary file, Ms. Feiock advised that a copy of the DAN regarding the specified incident was made available following Mr. Hester's May 9 request but a second copy was being provided with the rest of Lt. Norris's disciplinary file. In closing, LMDC reiterated its position regarding the preliminary character of the PSU investigation. Noting that investigations and videos have previously been released to "news media, attorneys, and private individuals," Lt. Norris is an employee of LMDC rather than a private individual, and Director Bolton based his determination regarding discipline on the requested video rather than the PSU investigation, though it was completed prior to discipline being imposed, Mr. Hester initiated this appeal. Having reviewed the documents remaining in dispute as well as the requested video recording in camera , under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office affirms the agency's final disposition of both requests on the bases of KRS 61.878(1)(i) and (j), and KRS 197.025(1), respectively.
Upon receiving notification of Mr. Hester's appeal from this office, Assistant Jefferson County Attorney Brianda A. Rojas responded on behalf of LMDC. Ms. Rojas reiterated that Director Bolton based his decision regarding discipline on his review of the video recording of the incident and statements made by Lt. Norris during a pre-termination meeting "which is not related to the PSU investigation." Having summarized each of the initial responses by the agency, Ms. Rojas correctly asserted that prior decisions by the Attorney General have recognized that LMDC acts as a designee of the Commissioner of the Department of Corrections under KRS 197.025(1) and enjoys the same discretion in determining whether the release of records will "'represent a threat to institutional security.' 13-ORD-022, n.4, citing 96-ORD-179." As the designee in this case, Director Bolton deemed release of the requested video a threat to the security of LMDC, Ms. Rojas observed, as it "can be viewed by others to assess the technology and/or procedures used by LMDC in the handling of inmates, it may be viewed to develop strategies used to overtake LMDC officers, and the footage can be used to study the camera's range of sight"-what is within the camera's view and those areas outside of the camera's range, "which can be used to smuggle contraband and other strategies of takeover or escape." Ms. Rojas argued that KRS 197.025(1) "clearly states if the disclosure is deemed to constitute a threat to the security of inmates, correctional staff, the department or any other person, no access to any of the records shall be given." For all of the foregoing reasons, LMDC maintained that Mr. Hester's request was properly denied on the basis of KRS 197.025(1).
With regard to accessibility of the requested PSU file, Ms. Rojas clarified that Director Bolton's "grounds are separate and independent of the PSU file which Mr. Hester incorrectly argues are required to be [publicly] released under the Open Records Act. " Acknowledging that videos and/or investigations may have been previously released pursuant to subpoenas, court orders and/or agreed protective orders, LMDC explained that each request is "subject to review on a case-by-case basis." Ms. Rojas emphasized that in both responses by the agency Mr. Hester was informed that the PSU investigation did not form the basis of the Disciplinary Action taken nor were any portions of the investigation adopted or incorporated into the final action by the agency. "It is of no consequence," Ms. Rojas continued, "that an investigation was completed and that such investigation was closed because it was not a part of LMDC's final action. " Director Bolton "made his own independent review of the video and statements made by Lt. Norris at a pre-termination meeting which are independent of the material contained within the PSU file." In response to additional inquiry from this office, Ms. Rojas later advised that "statements from the pre-termination meeting are not available because they are not recorded." Thus, LMDC maintained, the investigative file was properly withheld. In support of its position, the agency relied upon City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982), Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001), and prior decisions by this office, including 12-ORD-055.
Upon closer scrutiny of the PSU investigative file, LMDC subsequently notified Mr. Hester that a number of "collateral documents that were generated in the normal course of business and are not an integral part of the PSU investigation" were being made available for his review, including e-mails concerning the opening of the case, Incident Reports, a transcript of the audio heard from the Grill area, IMS Picture and History of Inmate Ferguson, Academic Course History for Lt. Norris, OC Administrative Warning Form, Extraordinary Incident Report for Officer Marcus Dowell, 24-48 Hour Notices, e-mail Request for Extensions, and specified Policies and Procedures (Employee Code of Ethics and Conduct, The Use of Oleoresin Capsicum, Restraint Devices, Health Care Services Provided to Inmates) . Accordingly, the only existing responsive documents remaining in dispute are the PSU Investigative Log and Case Report, and the statements of the witnesses (officers) interviewed as part of the investigation, a review of which, in short, confirmed that all retain their preliminary character and were properly withheld.
"Despite its manifest intention to enact a disclosure statute," the Kentucky Supreme Court has observed, "the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994). See Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995). Both the courts and this office have applied the language of these statutory exceptions in various contexts. See City of Louisville v. Courier-Journal and Louisville Times Company, above, at 658-660; Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983); University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) (Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). See 99-ORD-220; 02-ORD-86; 07-ORD-156; 08-ORD-098; 11-ORD-108. Guided by this evolving body of case law, the Attorney General has long recognized that public records which are, by nature, preliminary, forfeit their exempt status only upon being adopted by the agency as a basis for its final action. See OAGs 83-405, 84-98, 88-2, and 89-69. City of Louisville, above, the seminal case on this issue, and its progeny, including the subsequent line of opinions/ decisions by this office, are controlling on the facts presented. See 97-ORD-168, pp. 2-7. Compare 01-ORD-47; 01-ORD-83.
Significantly, in 02-ORD-018 this office held that witness statements and investigative summaries fell within the parameters of KRS 61.878(1)(i) and (j). The Attorney General reasoned:
The Court [in City of Louisville ] intended its reasoning to apply to investigative files . . ., including witness transcripts and investigative summaries, unless adopted . . . as the basis of final action. These records reflect the opinions of witnesses relative to what they observed, and the opinion of the investigator who prepared the summary relative to what observations and comments to include and exclude. We are not prepared to read into [the case law] , a distinction between records within the investigative file that the Court of Appeals did not make in that decision[s].
Id., p. 5. This office then observed that "the proper standard for determining when a record within an investigative file forfeits its preliminary character is found at page 659 of City of Louisville," above , wherein the Court held that if the Chief (or final decision maker) adopts the notes or recommendations that comprise the "Internal Affairs" report(s) "as part of his final action, clearly the preliminary characterization is lost to that extent." Id., pp. 5-6. See 10-ORD-046; (adopting 02-ORD-018); 12-ORD-055.
The Report and the statements in dispute are clearly investigative records which, under this line of authority, retain their preliminary characterization unless adopted, in whole or in part, as the basis of the agency's final action (discipline imposed on Lt. Norris). Mr. Hester presents no facts or arguments that would justify a departure from these precedents. Although this office cannot reveal the contents of these records, when viewed in light of the DAN, as well as the recording upon which Director Bolton partially relied, nothing contained therein refutes the agency's position that Director Bolton premised his decision regarding the discipline of Lt. Norris exclusively on his independent viewing of the recording and the (verbal) statements made by Lt. Norris at his pre-termination meeting (characterized as "hearing" on the DAN with Director Bolton identified as "Board Chairman" though LMDC has clarified that no such Board currently exists nor was the meeting between Lt. Norris, Director Bolton and the Union Steward a formal "hearing"). The statements apparently were not recorded and thus cannot be provided. However, the video recording of the incident (along with a transcript of the audio portion) arguably speaks for itself, particularly in light of the "acknowledgement and admission" that Lt. Norris apparently made during his meeting with Director Bolton and that meeting was independent of the PSU investigation. The record on appeal is devoid of any evidence to refute the assertion by LMDC that neither the Investigative Report nor the witness statements were adopted, in whole or in part, by Director Bolton as the basis for the final action of the agency. "This being the standard by which the courts and this office determine whether an investigative record forfeits its preliminary characterization, " the Attorney General concludes that LMDC did not violate the Act in withholding these investigative records on the bases of KRS 61.878(1)(i) and (j). 10-ORD-046, p. 7.
Resolution of the remaining question presented turns on the application of KRS 197.025(1), pursuant to which:
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.
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; 07-ORD-168. 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. 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.
Since its enactment in 1990, this office has upheld denials of requests by inmates and the public for a variety of records based on KRS 197.025(1), including, but not limited to conflict sheets (OAG 91-136), psychological evaluations of inmates (92-ORD-1314), facility canteen records (94-ORD-40), personnel records of correctional officers (96-ORD-179), 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), extraordinary occurrence reports (07-ORD-039), incident reports (03-ORD-190) and security video of a medical ward (10-ORD-055). Significantly, this office has consistently recognized the legitimate security implications of releasing video footage taken from security cameras located in a correctional setting. See 04-ORD-017 (videotape of inmate visitation room); 06-ORD-005 (still frame pictures from security footage of kitchen area). 07-ORD-168; 08-ORD-054; 10-ORD-055; 11-ORD-184. More recently, this office upheld the denial by LMDC of an inmate request for a copy of the videotape recording from the holding area located outside of the Jefferson County Circuit Court, Division 7 on the basis of KRS 197.025(1) as Director Bolton deemed release of that footage a security threat to the courts and their personnel as well as LMDC officers. See 13-OMD-022. Similarly, in 07-ORD-168, a copy of which is attached hereto and incorporated by reference, this office declined to substitute its judgment for that of Director Bolton or the LMDC in affirming its denial of a request by the Courier-Journal for access to "in-house surveillance video of the altercation" between an inmate and an LMDC officer, citing essentially the same credible security concerns used to justify the denial on the facts presented.
Here, LMDC determined, in a proper exercise of its discretion, that disclosing the requested video recording under the circumstances presented would pose a security threat to other inmates and LMDC staff. The Attorney General, as previously noted, has consistently recognized that KRS 197.025(1) vests the commissioner or his designee, Director Bolton here, with broad discretion in making this determination. 03-ORD-190, p. 5; 96-ORD-179; 00-ORD-125; 13-ORD-022. As before, this office declines to substitute its judgment for that of the Commissioner's designee. While Mr. Hester's purpose in requesting the videotape "may not have any bearing on facility security, he stands in the same shoes as any other requester under the Open Records Act. " 10-ORD-055, p. 2. Thus, what is made available to him must be made available to any member of the public, "including those who might intend to use the videotapes for improper or illegal purposes." Id.; See OAG 82-233; OAG 89-76; OAG 90-50; OAG 92-30; 96-ORD-209; 97-ORD-8; 05-ORD-025. To avoid release of the videotape for purposes that might otherwise threaten the security of the facility, LMDC properly invoked KRS 197.025(1) to deny access.
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:
Jason HesterKelly FeiockMark BoltonBrianda A. Rojas