Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act by denying a request for a video recording and an email the inmate claims was shown to him. Inmate Kurt Lowe ("Appellant") also complained that NTC violated the five-day period in which it must respond to open records requests. For the reasons set forth below, we find that NTC did not violate the Open Records Act.
By request signed on November 22, 2017, Appellant made a request for four items. His appeal contests only the following two requests:
. All videos of all angles of RHU-107 cell from 11/15/17 to 11/14/17; 1
. Email sent to Lt. Boles in RHU from Internal Affairs Captain Tracy Nietzel on 11/5/17 related to Kurt J. Lowe # 284794 and being put on dry-cell status.
In his appeal, Appellant claims that, on November 5, 2017, Lieutenant Boles showed him an email from Captain Nietzel which instructed Lieutenant Boles to "single out" Appellant, and that Appellant be given "special treatment." Appellant requested a copy of this email. By letter dated December 1, 2017, Kelly Napier, Offender Information Specialist, responded to Appellant's requests for the email and video recording. In response to the request for the email described by Appellant, Ms. Napier stated:
Your request for emails from Captain Tracy Nietzel to Lieutenant Stephen Boles for November 5, 2017 is denied as these records do not exist. I have spoken to Captain Nietzel and she has advised that no email was ever created specific to your request. Northpoint Training Center cannot provide records in response to a request if those records do not exist.
Appellant claims that this incident (Lieutenant Boles showing Appellant the email) was captured on a video recording by a security camera. In response to the request for the video recording, Ms. Napier explained that the dates for the video that Appellant was requesting were unclear, but that, "even if the footage exist[s], release of security camera video for an adult correctional institution is a security threat because of the amount and nature of the information included in a security video that cannot be redacted. Security camera video will not be provided pursuant to KRS 61.878(1)(l) and KRS 197.025(1)." Appellant's appeal also complained that Ms. Napier's response violated the five (5) business-day period allowed by KRS 197.025(7) for correctional facilities to respond to open records requests.
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on January 2, 2018. Attached to Ms. Barker's letter of response were two affidavits, one from Captain Tracy Nietzel and one from Lieutenant Stephen Boles. Captain Nietzel's affidavit attested that she did not create or send the email described by Appellant. Lieutenant Boles' affidavit attested that he did not receive the email described by Appellant and that he had not shown any email to Appellant. This Office has long recognized that a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. NTC discharged its responsibility by communicating in writing to Appellant that the email he requested does not exist. We find no violation by NTC with respect to the requested email.
Ms. Barker's letter also explained that NTC had correctly stated the exemption justifying the denial of release of the security camera footage. She cited a line of open records decisions that have upheld denial of prison security camera footage based on the security exemption of KRS 197.025(1) 2, which states:
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.
Ms. Barker explained why the video footage, if released, would constitute a threat under KRS 197.025(1):
Security camera footage taken at the prisons contains information that may directly affect the security of the institution, including the areas of observation and blind spots for the cameras, the areas where the camera is capable of focusing, methods or practices used to obtain the video, etc. It is impossible for [NTC] to redact the video and eliminate the security concerns.
In 11-ORD-184, this office, in a separate factual context, analyzed the recurring issue of requests for prison security footage and concluded that, in accordance with past decisions, the correctional facility properly exercised its discretion in denying an inmate request for a surveillance video because disclosure "would pose a security threat to other inmates and [facility] staff. " 11-ORD-184. KRS 197.025(1) reflects a legislative commitment to "prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209 (cited in 11-ORD-184). It is the commissioner, or his designee, whose determination in this regard is controlling. Therefore, we find no violation of the Open Records Act by NTC in denying Appellant's request for the video recording.
Ms. Barker also addressed Appellant's complaint that Ms. Napier's response to his requests was untimely and not in accordance with KRS 197.025(7) 3, which provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available
Appellant's request was signed on Wednesday, November 22, but Ms. Napier's response to the request states that the request was stamped on the date that she received it, November 29. The December 1 response from Ms. Napier was timely as it was issued within the five-day period allowed by KRS 197.025(7). Ms. Barker points out that the response would have been timely even had it been received on Monday, November 27, the first business day after the date of the appeal. The two days after November 22 were state holidays (Thanksgiving) and the following two days were the weekend. November 27 was the following Monday and December 1 was the following Friday. The December 1 response was within the five-day period allowed by the statute. We find that NTC did not violate KRS 197.025(7).
A party aggrieved by this decision may appeal it 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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