Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Kentucky State Penitentiary (KSP) properly relied on KRS 197.025(1) in denying inmate Christopher Brown's request dated January 4, 2016, to inspect "photos of documented tattoos on file along with any gang status [or] related materials [or] notes [or] pictures." For the reasons stated below, we find no violation of the Act.
On January 11, 2016, Amy Roberts, Offender Information Supervisor, denied Mr. Brown's request, stating that the records requested "would constitute a threat to the security of inmates, the institution, institutional staff, or others and cannot be provided. The Department is not required to release records that are a security risk pursuant to KRS 197.025(1) and KRS 61.878(1)(l). Mr. Brown initiated an appeal to this office on January 18, 2016, arguing that under KRS 61.884 "[a]ny person shall have access to any public record relating to him or in which he is mentioned by name."
KRS 197.025(1) specifically 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.
In a response to the appeal dated February 2, 2016, Catherine M. Stevens, Staff Attorney, Justice and Public Safety Cabinet, explains further the facility's position:
Photos of tattoos . Possession of photographs of tattoos would be a violation of several rules of the institution. First, the photographs would be considered tattoo paraphernalia, which is prohibited by the Corrections Policies and Procedures. CPP 15.2(II)(C)(Category IV)(16). The photographs could be used as guides or templates for other inmates. Secondly, one or more of Inmate Brown's tattoos are gang symbols or emblems. Possession of or displaying gang paraphernalia is also prohibited. CPP 15.2(II)(C)(Category V)(9). The photographs could be used for gang recruitment purposes. Involvement in gang activity is also prohibited. CPP 15.2(II)(C)(Category V)(10). Finally, the photographs could be used in aid of tattooing of another inmate, which is also prohibited activity. CPP 15.2(II)(C)(Category VI)(13). Penalties for these violations range from restriction of privileges to loss of up to 180 days good time and assignment to disciplinary segregation for a maximum of 90 days for each offense. CPP 15.2(II)(G).
Gang status . Inmate Brown also seeks to obtain any records KSP has related to his gang affiliation. Any information KSP may or may not have gathered in this regard must be protected for the safety and security of the institution. Among other reasons, the release of such information could put other inmates at risk.
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 KSP has articulated a credible basis for withholding these records in the interest of security. In previous appeals, 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. ( See 04-ORD-017 and authorities cited therein.) Consistent with the foregoing precedent, we conclude that KSP did not violate the Open Records Act in denying access to the requested 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 proceeding.