Request By:
Douglas Rank, # 241903
Amy V. Barker
Sharon Rose
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Douglas Rank initiated this appeal by letter dated May 18, 2017, challenging the denial by Eastern Kentucky Correctional Complex ("EKCC") of his May 8, 2017 (inadvertently marked 2016), request for one copy of the audio recording "of all my phone calls on a CD from January 1, 2016 through May 5, 2016." 1 In a timely written response per KRS 197.025(7), EKCC advised Mr. Rank that it "does not record attorney-client phone calls at this time due to Securus ([r]ecording software) terms and conditions." Upon receiving notification of Mr. Rank's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of EKCC. Ms. Barker initially observed that Mr. Rank's copy of his May 8 request contains what appear to be handwritten changes; namely, "2017" was added under each reference to "2016" in the date range provided on the request. Our assessment is "confined to the four corners" of the original request notwithstanding any subsequent attempts by the requester/ appellant to modify his description. 13-ORD-015, p. 2; 14-ORD-073. Accordingly, Ms. Barker was correct in asserting that calls from 2017 are not currently in dispute. Inasmuch as existing legal authority validates the substantive argument made by EKCC, further discussion of this aspect of Mr. Rank's appeal is unwarranted.
EKCC correctly denied the request, Ms. Barker continued, but failed to provide the statutory basis for the denial. Quoting KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), Ms. Barker correctly observed that KRS 197.025(1) grants the Commissioner broad discretion to determine what constitutes a security threat and the Office of the Attorney General has consistently maintained that it "will not 'substitute its judgment for that of the correctional facility or the Department of Corrections.' 08-ORD-148 at 4; see also 10-ORD-005; 03-ORD-190." 2 EKCC also quoted Kentucky Corrections Policies and Procedures ("CPP") 16.3 II.C in support of its position that "[r]ecordings of phone calls are created and maintained for the purpose of institutional security. Disclosing recorded phone calls would constitute a threat to the security of the institution by providing a means by which inmates could learn which calls are monitored." 3
In 15-ORD-118 (In re: Derek Works/Kentucky State Reformatory), this office was asked to determine whether KSR violated the Open Records Act in denying a request very similar to that of Mr. Rank on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). The requester in that case asked for "[One] tape of recorded calls from May of 2014 thru June 2, 2014, off of the Securus System . . . [and a copy of the same] from December of 2014 to February of 2015 . . . ." This office deemed the agency's justification of its reliance on KRS 197.025(1), which largely mirrored that provided on appeal here, entirely persuasive. A copy of 15-ORD-118 is attached hereto and incorporated by reference. See also 11-ORD-170; 15-ORD-030. Based upon the reasoning found in that Open Records Decision, this office finds that EKCC "met its statutorily assigned burden of proof in denying [Mr. Rank's May 8, 2017,] request and appeal in counsel's well-reasoned supplemental response. KRS 61.880(2)(c)." 15-ORD-118, p. 3. Here, as in that case, this office is "satisfied that disclosure of the requested records [if any exist] constitutes a threat to institutional security as contemplated by KRS 197.025(1)." Id. The denial by EKCC of Mr. Rank's May 8 request is affirmed. 4
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Also enclosed with Mr. Rank's appeal were requests dated January 25, 2017, February 28, 2017, March 13, 2017, and April 4, 2017, the responses to which EKCC sent on January 30, 2017, March 9, 2017, March 17, 2017, and April 5, 2017, respectively. On appeal, EKCC correctly asserted that Mr. Rank's appeal is untimely relative to all of these requests given that April 25, 2017, was the latest date on which Mr. Rank could have properly challenged these denials under KRS 197.025(3) and his appeal is dated May 18, 2017. See 14-ORD-054. In subsequent correspondence, Mr. Rank explained that he included all of the requests that he submitted prior to May 8 "in order to show the history and development of EKCC's responses." Pursuant to KRS 197.025(3), our analysis will focus exclusively on the agency's denial of Mr. Rank's May 8 request, which, insofar as it asked for the same audio recordings previously sought, is also time barred. A "subsequent request for the same records does not revive the appeal rights forfeited by an inmate's previous failure to appeal within the allotted time." 16-ORD-108, p. 1; 14-ORD-054.
2 KRS 197.025(1) 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.
KRS 61.878(1)(l) states that public agencies may withhold, "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
3 CPP 16.3, available at http://corrections.ky.gov/communityinfo/Policies%20and%20Procedures/Doc…
4 Ms. Barker also noted, and subsequently reiterated in her June 13, 2017, supplemental response addressing Mr. Rank's June 6, 2017, reply letter, that even assuming the issue of whether attorney telephone calls are open to inspection was properly before this office, EKCC does not possess any recordings of those calls nor can it access the calls in the Securus system "if the attorney has given notice to Securus of the number being used for the calls. The Department of Public Advocacy (DPA) has its number restricted by Securus and EKCC cannot access any recording of the number provided." A log may be accessible by specific EKCC staff, Ms. Barker continued, but EKCC cannot access or record any calls of this kind. Consistent with KRS 61.872(4), Ms. Barker provided the mailing address for Securus Correctional Billing Services found on its website and explained that Mr. Rank would have to submit his request to Securus.