24-ORD-275
December 23, 2024
In re: Yvon Utsey/Northpoint Training Center
Summary: The Northpoint Training Center (the “Center”) violated the
Open Records Act (“the Act”) when it failed to issue a response to a
request that complied with KRS 61.880(1) within five business days of
receiving that request. However, the Center did not violate the Act when
it denied a request for recorded telephone calls that, if released, would
pose a security threat under KRS 197.025(1).
Open Records Decision
Inmate Yvon Utsey (“Appellant”) submitted a request to the Center for “one
copy of a telephone call (outgoing) mad[e] to” a specific number at a specified time.
The Center received the request on October 30, 2024, and on November 7, 2024,
issued a response stating it “will require additional time to retrieve [his] records” and
that the Appellant should receive the records “on or before November 13, 2024.” The
next day, on November 8, the Center denied his request under KRS 197.025(1)
because “the release of this record would pose a threat to security.” This appeal
followed.
Under KRS 61.880(1), a public agency must decide within five business days
whether to grant a request or deny it.1 This time may be extended under
KRS 61.872(5) when records are “in active use, in storage or not otherwise available,”
if the agency gives “a detailed explanation of the cause . . . for further delay and the
place, time, and earliest date on which the public record will be available for
1
November 5 was presidential election day, which is a “state holiday” and a day “on which all state
offices . . . shall be closed.” KRS 2.190. Under KRS 61.880(1), Saturdays, Sundays, and legal holidays
are excluded from the computation of time a public agency must issue its response. Thus, November 7
was the fifth business day following the Center’s receipt of the Appellant’s request on October 30.inspection.” The burden of proof rests with the public agency to sustain its actions.
KRS 61.880(2)(c).
KRS 61.872(5) requires the public agency to notify the requester that the
records are “in active use, storage, or not otherwise available.” The statute also places
the burden on the agency to give a “detailed explanation of the cause” for further
delay. Id. Here, however, the Center did not specifically indicate that the records at
issue were in “in active use, storage, or not otherwise available” or give a “detailed
explanation of the cause” for further delay. The Center merely cited KRS 197.025(7)
and asserted that “time may be extended [beyond five business days], however, if the
records are in use, storage or not otherwise available.” Thus, because it failed to
provide the “detailed explanation” required under KRS 61.872(5), the Center’s initial
response violated the Act.
Regarding the Center’s November 8 supplemental response, it denied the
Appellant’s request under KRS 197.025(1) because “the release of this record would
pose a threat to security.” Under KRS 197.025(1), “no person shall have access to any
records if the disclosure is deemed by the commissioner of the [Department of
Corrections] or his designee to constitute a threat to the security of
the . . . correctional staff [or] the institution.” KRS 197.025(1) is incorporated into the
Act under KRS 61.878(1)(l), which exempts from inspection public records the
disclosure of which is prohibited by enactment of the General Assembly.
On appeal, the Center explains the “disclosure of the requested audio recording
would provide a means by which [the] Appellant and other inmates could learn how
the institution monitors telephone calls, which telephone calls the institution
monitors, and use that information to develop strategies to evade monitoring of
telephone calls that pose a security risk to the institution.” The Office has historically
deferred to the judgment of a correctional facility in determining whether the release
of certain records would constitute a security threat. Specifically, the Office has
previously upheld the denial of telephone recordings under KRS 197.025(1). See, e.g.,
24-ORD-240 (upheld a denial for telephone recordings that posed a security threat
under KRS 197.025(1)); 23-ORD-338 (same); 17-ORD-111 (upholding denial of
telephone recordings because of the risk inmates could learn which calls are
monitored). Therefore, the Center did not violate the Act when it withheld a copy of
a recorded telephone call that, if released, would pose a security risk under
KRS 197.025(1).A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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.
Russell Coleman
Attorney General
/s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#478
Distributed to:
Yvon Utsey #126145
Michelle Harrison
Renee Day
Ann Smith