Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Luther Luckett Correctional Complex ("LLCC") violated the Open Records Act in denying an inmate's request for security camera video under the security exemption, in denying a request for inspection on the grounds that the inmate was in disciplinary segregation, and in withholding logs and reports under the law enforcement exemption. We find that LLCC did not violate the Open Records Act in denying an inmate's request for security camera video under the security exemption, and in denying a request for inspection of records on the grounds that the inmate was in disciplinary segregation. LLCC violated the Open Records Act in failing to assert the harm that would be caused by the release of documents in withholding documents under the law enforcement exemption.
John Belden submitted an open records request to LLCC on May 23, 2016. Belden requested "4-28-16 Video footage of 'staff assault' incident at canteen area (see DR # LLCC-2016-01276) I want footage of incident * 15 minutes prior 'and' 15 minutes after * (Time 1:00 pm-1:50 pm)." Belden submitted another request on the same date, requesting:
. ALL Incident reports for 4-28-16 inregards to c/o Ramey & J/m Belden start altercation. All reports (-1:20-2:00 pm-) of "responding officers" and "extrodinary reports."
. Copy of shift log of event and responding officers
. Copy of shift report and proccess of this event and those involved
Belden also submitted a request which was received by the LLCC Medical Department on May 26, 2016, in which Belden requested:
(1) All Records, Pictures, Doc. Notes, Surgery & Post-Op directives, Medical Recommendations, treatments and ultimately all file and data related to and between June 6th 2015 -- Current Regarding Right Knee Injury & Ortho. Specialist's directives/ notes
(2) All records, Pictures (nurses, I/A, UA Hayes . . . ect . . .), Medical Provider notes & recommendations, x-ray results, * Incident Reports by all staff on 4-28-16 to related incident, Investigation findings by I/A and otherwise, Medical notes and recommended treatment.
The request also stated that Belden requested the "right to inspect prior to purchase."
LLCC responded to the requests on May 27, 2016. Regarding Belden's request for the security video footage, LLCC stated, "this request is denied per KRS 197.025(1); as the release of surveillance videos presents a threat to the security of the institution. The video will be preserved by Internal Affairs for at least 12 months." Regarding Belden's request for the incident reports and shift logs, LLCC stated, "you have been provided a copy of the disciplinary reports and attachments. That is all you are permitted to have at this point. The other documents are closed pending a law enforcement investigation, per KRS 61.898(1)(h) [sic]. You may request these documents after investigation has been completed." Regarding Belden's request for medical records, LLCC stated that "the request for medical records has been forwarded to the medical department for response." On June 1, 2016, LLCC responded to the request for medical records, stating that "the Open Records Act does not require that an inmate who has been placed in disciplinary segregation be furnished with an escort so that he may exercise his right of on-site inspection, or that the records custodian bring the records to him. You can still request copies of your records at a cost of .10 per page."
Belden initiated this appeal, which was included with a criminal complaint and addressed to this office's Special Prosecutions Division, who received it on June 13, 2016. 1 Regarding the request for security video footage, Belden argued that "the court (in punitive segregation unable to cite actual case) locally in state has clearly stated KyDOC 'parrotting' of 'security threat' phrase must show an actual injury or cause," and "the Legal merit for video footage outweighs the 'lack of' a actual security threat." Regarding the request for the incident reports and shift logs, Belden argued that "to add that a 'pending . . . law enforcement investigation' is ongoing adds another element that is not addressed." Belden referred to his argument concerning the security video footage, and argued that "it now comes down to the fact these very documents are not protected and are 'routinely' open for inspection. " Regarding the request for medical records, he argued that "if I wasn't in punitive segregation I could walk up to Medical Office and sit down at a computer terminal and scan through documents. My 'internal housing' has absolutely 'no relevance to my rights to inspect my medical records' . . . ."
LLCC responded to the appeal on July 19, 2016. LLCC first argued that "pursuant to KRS 197.025(3), the twenty day timeframe in which the appeal could be filed ended at the latest on June 21, 2016." Regarding the video footage, LLCC argued that this office "has upheld the denial of inmates' open records requests for correctional institution security camera footage based on the security exemption. " Regarding the medical records, LLCC argued that "Belden is currently in a segregation housing assignment which prohibits him from moving freely about the institution. . . . The institution is not obligated to make the records available to him in his cell. Inmate Belden was advised by LLCC that he may request and pay for copies in lieu of inspection. " LLCC did not address the denial of the incident reports and shift logs under the law enforcement exemption.
KRS 197.025(3) provides that "all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial." In this case, Belden timely filed his appeal with this office, but that appeal was not properly processed until a month later due to it being sent with a criminal complaint to the Special Prosecutions Division. Belden complied with his obligation under KRS 197.025(3), and his appeal is not time-barred.
Regarding Belden's request for the video footage, KRS 197.025(1) provides that "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." "Security camera footage in prisons may lawfully be withheld under the security exemption in KRS 197.025(1)." 2 14-ORD-135. Accordingly, LLCC did not violate the Open Records Act in withholding security camera footage under the security exemption in KRS 197.025(1).
Regarding the request for incident reports and shift logs, KRS 61.878(1)(h) exempts from the Open Records Act "records of law enforcement agencies . . . if the disclosure of the information would harm the agency . . . by premature release of information to be used in a prospective law enforcement action." However, in
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the court held that "the law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action." Id. at 851. LLCC made no assertion of harm in its invocation of KRS 61.878(1)(h), and did not address the law enforcement exemption in its response to Belden's appeal, perhaps due to the lack of clarity in the appeal. Nevertheless, LLCC did not articulate any showing of harm in denying Belden's request for incident reports and shift logs under the law enforcement exemption, and accordingly violated the Open Records Act.
Regarding Belden's request to inspect his medical records, LLCC denied the request on the grounds that he was in disciplinary segregation, and required payment for copies. "The Attorney General has consistently affirmed the denials by correctional facilities of requests by inmates housed in disciplinary segregation based on their inability to conduct on-site inspection. " 15-ORD-062. 3 Belden "may conduct an on-site inspection . . . after he is released from disciplinary segregation, or he may access the records by receipt of copies when there are sufficient funds in his inmate account to pay for those copies. Until that time, he 'must accept the necessary consequences of his confinement.'" 05-ORD-080. Accordingly, LLCC did not violate the Open Records Act in denying Belden's request for inspection on the grounds that he was in disciplinary segregation.
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.
Footnotes
Footnotes
1 Belden's criminal complaint alleges various crimes related to the use of excessive force against him. Such allegations are outside the scope of an open records appeal. Criminal complaints should be referred to the appropriate Commonwealth or county attorney.
2 In 13-ORD-022, we explained the reasoning behind withholding security camera footage under the security exemption in KRS 197.025(1):
Release of the requested video footage is a security threat because it can be viewed by others to assess the technology and/or procedures used by LMDC and other law enforcement agents in the handling of inmates, it may be viewed to develop strategies used to overtake LMDC's officers and possibly other law enforcement agents, and the footage can be used to study the camera's range of sight - what is within the camera's view and the areas outside of the camera's image which can be used to smuggle contraband and other strategies of takeover or escape.
13-ORD-022.
3 In 05-ORD-080, we explained the reasoning behind not allowing inmates in punitive segregation to inspect records:
Although the Open Records Act contemplates access by one of two means, on-site inspection during the regular office hours of the agency or receipt of copies through the mail, the former approach to inspection may pose a problem in the restrictive environment of a correctional facility. "Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined." If the inmate is prohibited from moving freely around the facility, as is the case here, and is therefore unable to conduct an on-site inspection in the office where the records are maintained, "the facility is under no obligation to bring the original records to his cell for inspection." Under such circumstances, the facility may deny access . . . .
05-ORD-080 (citations omitted).