Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Henderson County Detention Center ("HCDC") violated the Open Records Act in its denial of Alton Franklin's request for "all surveillance video and audio" of himself on September 11, 2018, in "Intake/ Booking, Door 418 Area, Cell 418 Intake/ Booking Holding," and "Policies & Procedures governing the expected actions, behaviors, 'professionalism, ' of Deputy Jailers, also regarding interactions with Inmates. " For the reasons stated below, we find a procedural violation of the Act but no substantive violation.
Although Mr. Franklin dated his request September 13, 2018, it was not received at HCDC until September 27, 2018. On September 28, 2018, HCDC denied the surveillance footage, citing KRS 197.025(1) and KRS 61.168(4)(d). 1 HCDC indicated that the security camera footage "may disclose restricted areas and may directly affect the safety and security of the facility, staff, and inmates, " including "the areas of booking and observation, camera blind spots, [and] the areas where the camera is capable of focusing." Additionally, HCDC stated that "included in the camera views are officers and inmates at intake or release, attorneys and volunteers consulting with inmates in the interrogation room, deputy jailers conducting their daily tasks moving inmates to and from isolation for reasons such as protective custody, medically necessary isolation, administrative segregation, suicide watch, and law enforcement confidential informants." HCDC further asserted that it was impossible for HCDC "to redact the video and eliminate the safety concerns."
Citing KRS 197.025(1) and 197.025(6), HCDC also denied the requested policies and procedures, stating as follows:
The Personnel Policy and Procedures manual contains confidential, restricted information on the daily operations of the facility including but not limited to evacuation plans and routes, use of force procedures, shift-tasking assignments as required by the Kentucky Jail Standards. Disclosure of the Personnel Policy and Procedures would place staff at risk and violate the safety and security of the facility, inmate's [ sic ] volunteers, and contract staff.
This office received Mr. Franklin's appeal on October 19, 2018.
KRS 197.025(1) 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.
This provision affords the Commissioner of the Department of Corrections or his designee, including jailers, "broad, although not unfettered, discretion" to deny access to "records the disclosure of which, in his view, represents a threat to institutional security." 96-ORD-179.
This office has consistently ruled that security camera footage in correctional facilities may be withheld from public inspection as a security threat on the basis of its tendency to reveal methods and practices used to obtain the footage, as well as areas of observation of the cameras. See, e.g. , 04-ORD-017; 08-ORD-082. We have specifically held this to include "footage illustrating [a jail's] booking, search, and other intake procedures." 18-ORD-074. In 16-ORD-042, we upheld the denial of access to security footage on the basis of KRS 197.025(1), even in an "outer office" outside the security fence, on grounds that it could reveal "information concerning the coverage and capability of the video camera, " as well as information on security procedures.
Since the facts and legal arguments in this case are substantially similar to those in the cited decisions, we find that HCDC has articulated a credible basis for withholding the video footage 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 or its designee, and the present appeal presents no reason to depart from this approach. 04-ORD-017. Consistent with the foregoing precedent, we conclude that HCDC did not violate the Open Records Act in denying access to the footage on the basis of KRS 197.025(1). 2
Turning to HCDC's denial of "Policies & Procedures governing the expected actions, behaviors, 'professionalism, ' of Deputy Jailers, also regarding interactions with Inmates, " we note that KRS 197.025(6) provides, in part, as follows:
The policies and procedures of the department which address the security and control of inmates and penitentiaries shall not be accessible to the public or inmates.
This subsection likewise applies to policies and procedures of county jails. 11-ORD-120. Its application, however, does not encompass the entirety of a policy and procedure manual, but is limited to those specific policies described in the statute:
The jailer, acting as the designee of the Commissioner of the Corrections Department, may designate portions of the jail policy and procedure manual as confidential if he or she finds that disclosure would imperil personal and public security and administrative order. Confidentiality may, for example, be appropriate for discre[te] portions of the manual dealing with security and control and safety and emergency procedures. Conversely, portions of the manual dealing with, for example, fiscal management and inmate programs should not be deemed confidential since their disclosure does not adversely affect the security of the facility.
95-ORD-121.
In the present appeal, Mr. Franklin requested the HCDC policies and procedures pertaining to the "actions" and conduct expected of deputy jailers and to their "interactions" with inmates. We consider these matters sufficiently related to the "control of inmates" to fall within the scope of KRS 197.025(6). Accordingly, we find no substantive error in HCDC's denial of Mr. Franklin's request.
HCDC did, however, commit a procedural violation of KRS 61.880(1), which requires a public agency to state "the specific exception authorizing the withholding of the record." In this case, the exception HCDC should have cited was KRS 61.878(1)(l), which exempts "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." In all other respects, however, we find no violation of the Open Records Act.
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 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.
Footnotes
Footnotes
1 KRS 61.168(4)(d) applies exclusively to recordings from body-worn camera. From the content of the request and response, it does not appear that any body-worn camera footage is at issue in this appeal; accordingly, we do not address this statute.
2 Mr. Franklin's citation of 17-ORD-180 is inapposite, since in that appeal the Madison County Detention Center did not invoke KRS 197.025(1).