Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : Roederer Correctional Complex did not violate the Open Records Act in denying inmate's request for a copy of a photograph of himself that he sent to a named individual from his JPay e-mail account because RCC demonstrated on appeal that disclosure would constitute a legitimate security threat. Accordingly, this office affirms the agency's denial of the request per KRS 197.025(1), incorporated into the Open Records Act by KRS 61.878(1)(l).
Open Records Decision
The question presented in this appeal is whether the Roederer Correctional Complex ("RCC") violated the Open Records Act in denying Robert Short's August 11, 2019, request for a copy of a photograph of himself that he sent to a named individual at 7:05 a.m. on August 11, 2019, from his JPay e-mail account. Records Administrator Michelle Floyd issued a timely written response per KRS 197.025(7) on behalf of RCC. On appeal, Mr. Short emphasized that RCC did not dispute the requested photograph was an image of him and therefore he was entitled to a copy pursuant to KRS 197.025(2). However, upon receiving notification of Mr. Short's appeal, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, supplemented the agency's response. Ms. Barker noted that a review of the photograph confirmed "it was the type of photo of the inmate [] that could be used to fabricate identification and it cannot be released to the inmate pursuant to the security risk exemption in KRS 197.025(1)." 1 Relying upon a line of prior decisions by this office, she asserted that KRS 197.025(1) vests the Commissioner of the Department of Corrections, or his designee, with broad discretion and the Attorney General should not substitute his judgment for that of RCC or the DOC. Based upon the following, this office affirms the denial of Mr. Short's request pursuant to KRS 197.025(1), incorporated into the Open Records Act by KRS 61.878(1)(l). 2
By enacting KRS 197.025(1), "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 03-ORD-190; 17-ORD-097. In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3; 03-ORD-190; 16-ORD-267. Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2 (emphasis added); 03-ORD-190. Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from the public for a variety of records based on KRS 197.025(1), including, but not limited to: a copy of each facial photograph of the inmate requester found within the Kentucky Offender Management System ("KOMS")(16-ORD-267); extraordinary occurrence reports (07-ORD-039, 16-ORD-071, 17-ORD-097); personnel statements contained in extraordinary occurrence reports (10-ORD-056, 10-ORD-063, 12-ORD-123); information regarding other individuals contained in extraordinary occurrence reports (08-ORD-251); conflict sheets (OAG 91-136, 11-ORD-177); and psychological evaluations of inmates (92-ORD-1314). The instant appeal presents no basis to depart from this well-established line of authority. Our in camera review of the requested photograph, conducted in accordance with KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, validated the agency's reliance on KRS 197.025(1).
Here, RCC determined, in a proper exercise of its discretion, that disclosing the requested photograph would pose a security threat to RCC staff, other inmates, and the institution. The Attorney General has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 96-ORD-179; 00-ORD-125; 11-ORD-177. As before, this office declines to substitute its judgment for that of the correctional facility or DOC. In sum, RCC properly relied upon KRS 197.025(1) in withholding the specified photograph. Consideration of the agency's initial basis for denial is therefore unwarranted.
Either party may appeal this decision may appeal 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.
Footnotes
Footnotes
1 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.
Although RCC did not cite it, KRS 61.878(1)(l) incorporates KRS 197.025(1) into the Open Records Act. Had RCC identified and located the requested photograph before denying access, it would have discovered in a timely manner that KRS 197.025(1) applied.
2 KRS 61.878(1)(1) removes from application of the Open Records Act, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."