21-ORD-161
July 5, 2023
In re: Kentucky Innocence Project/Department of Corrections &
Blackburn Correctional Complex
Summary: The Department of Corrections (“the Department”) violated
the Open Records Act (“the Act”) when it failed to state the exception
authorizing the withholding of a record, but it did not violate the Act
when
it
withheld
a
pending
disciplinary
violation
under
KRS 61.878(1)(j) because no final action had yet been taken. The
Blackburn Correctional Complex (“the Complex”) did not violate the Act
when it denied inspection of records the disclosure of which would pose
a security threat under KRS 197.025(1).
Open Records Decision
On May 31, 2023, the Kentucky Innocence Project (“Appellant”) made a request
to the Department for “any and all records and copies of audio recordings of phone
calls pertaining to” a certain inmate at the Complex between May 9 and May 23,
2023. In a timely response, the Department stated the inmate had “a disciplinary
violation on May 11, 2023,” which was “still pending investigation” and could not be
released “until it [was] finalized.” The Department further stated it did not have
access to the phone recordings and the Appellant should instead request those records
from the Complex.
On June 1, 2023, the Appellant made a request to the Complex for the same
records. In a timely response, the Complex denied the request because “the disclosure
of recordings of phone calls would constitute a threat to the security of inmates, the
institution,
institutional
staff,
or
others
[under]
KRS
197.025(1)
and
KRS 61.878(1)(l).” The Complex further explained that “[d]isclosing recorded phone
calls would constitute a threat by providing a means by which inmates could learn
which phone calls are monitored.” In addition, the Complex “decline[d] to identifywhich, if any, of the calls have been destroyed because it would also give away
security information concerning the monitoring of inmate phone calls.” Finally, the
Complex stated that “the phone records cannot be provided pursuant to
KRS 61.878(1)(a) since they contain information of a personal nature the public
disclosure of which constitutes an unwarranted invasion of personal privacy.” This
appeal followed.
When a public agency denies a request for public records, it must “include a
statement of the specific exception authorizing the withholding of the record and a
brief explanation of how the exception applies to the record withheld.” KRS 61.880(1).
Here, with regard to the initial request, the Department admits it failed to state the
exception authorizing the withholding of the inmate’s pending disciplinary violation.
Thus, the Department violated the Act.
On appeal, the Department cites KRS 61.878(1)(h), (i), and (j), and explains
“there has been no final disposition” of the inmate’s disciplinary matter.
KRS 61.878(1)(j) exempts from disclosure “[p]reliminary recommendations, and
preliminary memoranda in which opinions are expressed or policies formulated or
recommended.” Because the investigation is ongoing and no final agency action has
been taken, the disciplinary violation remains a “preliminary recommendation” at
this time. Accordingly, the Department did not violate the Act when it denied the
request for that record.1
Under KRS 197.025(1), which is incorporated into the Act under
KRS 61.878(1)(l), “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.” This Office has historically deferred to the judgment of correctional
facilities in determining whether the release of certain records would constitute a
security threat under KRS 197.025(1). In particular, this Office has consistently
upheld the denial of inmate telephone recordings. See, e.g., 19-ORD-024; 17-ORD-
111; 15-ORD-030; 11-ORD-170; 07-ORD-182. Recordings of inmate phone calls are
created and maintained for the purpose of institutional security.2 As the Complex
explained in its initial response, disclosure of these recordings would constitute a
threat to the security of the institution “by providing a means by which inmates could
learn which phone calls are monitored.” Under the facts of this appeal, this Office
1
Because KRS 61.878(1)(j) is dispositive of this issue, it is not necessary to address the Complex’s
denial under KRS 61.878(1)(h) or (i).
2
See
Corrections
Policy
and
Procedure
(“CPP”)
16.3(II)(C),
available
at
https://corrections.ky.gov/About/cpp/Documents/16/CPP%2016.3.pdf (last accessed July 5, 2023) (“An
inmate telephone call may be monitored on a random basis or if there is reason to believe the telephone
privilege is being abused in a manner that is in violation of law or detrimental to the security of the
institution, employees, or other inmates.”).defers to the judgment of the Complex and the Department of Corrections to
determine that the release of the recordings would pose a security threat under
KRS 197.025(1). Accordingly, the Complex did not violate the Act when it denied the
Appellant’s request for the recordings.3
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#241
Distributed to:
Miranda Hellman, Esq.
Amy V. Barker, Esq.
Ms. Lydia C. Kendrick
Ms. Ann Smith
3
Because KRS 197.025(1) is dispositive of this issue, it is not necessary to address the Complex’s
denial under KRS 61.878(1)(a).