Opinion
Opinion By: Jack Conway, Attorney General;James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory ("KSR") violated the Kentucky Open Records Act in its disposition of an open records request from inmate Marvin Pennington. We conclude that KSR did not violate the Act.
Mr. Pennington's request, dated December 18, 2014, and received by KSR Offender Information on December 24, 2014, stated as follows: "I want a copy of a telephone call I made on October 12, 2014, on the Inmate Phone System. This call was made in Dorm # 3, D Wing phone, between 6:30-8:30 pm." The request was denied on December 24, 2014, by William Mustage, who stated in part:
Phone records and the appropriate documentation of such are created and maintained for the purpose of institutional security, and they will be withheld pursuant to KRS 197.025(1) . That provision states that "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."
Mr. Pennington appealed to this office by letter dated January 8, 2015, which was received on January 20, 2015. He states that he was requesting a "personal family phone call" and adds: "If the Internal Affairs Department had actually listened to the phone call, they would have known that it could not be a threat to the safety and security of the institution."
On January 26, 2015, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded to the appeal on behalf of KSR. She states, in part:
Kentucky Corrections Policies and Procedures ("CPP") 16.3 II.C. provides that "[a]n inmate telephone call may be monitored on a random basis or if there is reason to believe the telephone privilege is being abused in a manner that is in violation of law or detrimental to the security of the institution, employees, or other inmates. " ? Disclosing recorded phone calls would constitute a threat to the security of the institution by providing a means by which inmates could learn which phone calls are monitored.
KRS 197.025(1) affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security. " 96-ORD-179. Under the facts presented, we find that KSR has articulated a credible basis for withholding the telephone records in the interest of security. Moreover, we have reached a similar conclusion in previous appeals involving inmate telephone records. See 11-ORD-170; 07-ORD-182. 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. 04-ORD-017. Consistent with the foregoing precedent, we conclude that KSR did not violate the Open Records Act in denying access to the requested phone records on the basis of KRS 197.025(1) .
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 proceedings. Jack Conway Attorney General James M. Herrick Assistant Attorney General # 40 Distributed to: