25-ORD-040
February 13, 2025
In re: Dan Yeast/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (“the
Complex”) did not violate the Open Records Act (“the Act”) when it
denied a request for records that, if released, could pose a security threat
to the safety of a correctional facility.
Open Records Decision
On August 9 and October 17, 2024, attorney Dan Yeast (“Appellant”) submitted
a request to the Complex seeking “security footage” of an incident involving a
particular inmate on July 22, 2024. In responses dated September 13 and October 24,
2024, the Complex denied the Appellant’s request for footage under KRS 197.025(1),
which is incorporated into the Act by KRS 61.878(1)(l). This appeal followed.1
Before addressing the merits of the appeal, the Office must assure itself that it
has jurisdiction. Under KRS 197.025(3), “all persons confined in a penal facility shall
challenge any denial of an open record [request] with the Attorney General by mailing
or otherwise sending the appropriate documents to the Attorney General within
twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2)
before an appeal can be filed in a Circuit Court.” Thus, KRS 197.025(3) requires those
“confined in a penal facility” to exhaust their administrative remedies by initiating
an appeal with the Office before proceeding with an action in circuit court, and they
must avail themselves of that administrative remedy by “sending the appropriate
documents to the Attorney General within twenty (20) days of the denial.” Id.
1
On appeal, the Appellant states that he only challenges “the decision to withhold this video
footage.” Thus, the timeliness of the Complex’s responses is not at issue.The Complex asserts that the Appellant is acting on behalf of a particular
inmate. Therefore, it argues, the Appellant is subject to KRS 197.025(3) as if he were
a person “confined in a penal facility.” To support this argument, the Complex relies
on a line of decisions in which the Office has applied KRS 197.025, which controls
inmates’ access to records under the Act, to requesters who are not inmates. In those
instances, the Office has found that there exists “sufficient objective indicia to show
that there is identity of purpose between” the requester and an inmate. See, e.g., 09-
ORD-225; 09-ORD-158; 04-ORD-214; 02-ORD-82; 00-ORD-182.
00-ORD-182 involved a joint request submitted by an inmate and his wife. The
agency denied the request because the requested records did not specifically reference
the inmate requester. See KRS 197.025(2) Thus, the Office found that “sufficient
objective indicia exist[ed] to establish an identity of purpose between” the non-inmate
and inmate requesters. The Office noted that any other outcome would “undermin[e]
the purpose for which KRS 197.025(2) was enacted.” Here, however, it is not readily
apparent that the purpose for which KRS 197.025(3) was enacted, i.e., limiting
inmate litigation, is undermined when an attorney who allegedly represents an
inmate did not appeal the denial of his request within the 20-day deadline found in
KRS 197.025(3). Indeed, the sole instance in which the Office has applied this
“sufficient objective indicia” analysis to construe KRS 197.025(3) was one in which
the Office also determined that it was likely the inmate requester had “prepared the
request and affixed his wife’s name to it.” 05-ORD-252.
This “sufficient objective indicia” of an “identity of purpose” test is arguably not
moored to the text of KRS 197.025, and therefore, its fealty to the principle that
exceptions to the Act’s disclosure requirements must be narrowly construed, see
KRS 61.871, might be questioned. However, that question need not be answered here
because, using the “sufficient objective indicia” of an “identity of purpose” analysis,
the Complex does not meet its requirements.
Here, the Complex has done no more than make the bald assertion that there
are “sufficient objective indicia” of an identity of purpose between the Appellant and
the identified inmate. The Complex asserts the Appellant represents the inmate as
his attorney but provides no evidence to support that claim. But see KRS 61.880(2)(c)
(“The burden of proof in sustaining the action shall rest with the agency.”). Moreover,
none of the materials submitted by the Appellant explicitly indicate that he
represents the inmate, and even if he does, there is no objective evidence that the
requester is seeking the records at the behest of his client, as opposed to requesting
them for his own purposes. Absent any affirmative evidence of a relationship betweenthe inmate and the Appellant, or of an identity of purpose between the inmate and
the Appellant, the Office declines to assume that relationship’s existence.
Accordingly, the Appellant, as someone who is not incarcerated, was not required to
appeal the Complex’s denial of his request within 20 days. The Office therefore has
jurisdiction to consider this appeal.
Under KRS 197.025(1), “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” (emphasis added). This Office has historically
deferred to the judgment of the correctional facility in determining whether the
release of certain records would constitute a security threat. The Office has upheld
the denial of security footage multiple times under KRS 197.025(1). See, e.g., 23-ORD-
089; 18-ORD-074; 13-ORD-022; 10-ORD-055. The release of security footage poses a
security risk because it may disclose the “methods or practices used to obtain the
video, the areas of observation and blind spots for the cameras.” See, e.g., 22-ORD-
038; 17-ORD-211; 15-ORD-121; 13-ORD-022. Here, the Complex explained that the
video footage can be used to “reveal the facility’s methods and practices used in
obtaining the video.” Moreover, the Complex explained that “the subject video reveals
those areas the security camera is capable of capturing and blind spots that are
beyond the range of the security camera.”
Finally, the Office notes that the purpose of KRS 197.025(1) is to protect the
safety of inmates, employees, and others inside the correctional facility. A
correctional facility cannot control the dissemination of records after their release.
While no one suspects the Appellant would disseminate the records he receives in
response to a request, the same may not be true of everyone else. Thus, the Appellant,
although not an inmate, is equally barred from obtaining records “deemed a security
threat.” See, e.g., 24-ORD-055 (finding that the Appellant, an attorney, was barred
from obtaining records deemed a security threat under KRS 197.025(1)).
Accordingly, the Complex did not violate the Act when it withheld the
requested video because it has adequately explained how KRS 197.025(1) applied to
the record withheld.
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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#029
Distributed to:
Dan Yeast
Lisa Gillum
Michelle Harrison, Executive Advisor, Justice and Public Safety Cabinet
Renee Day, Paralegal, Justice and Public Safety Cabinet
Ann Smith, Executive Staff Advisor, Justice and Public Safety Cabinet