LOUISVILLE, Ky. (WDRB) -- Jefferson County Public Schools violated Kentucky's Open Records Act when it failed to release video footage capturing the lobby of the Van Hoose Education Center in November, according to a decision issued Monday by the state attorney general's office. 

James Herrick, an assistant attorney general, wrote in a March 31 opinion that JCPS did not prove it can withhold the video under state law.

Philip Setters sent two requests to JCPS on Nov. 16 and Nov.19, in regards to video footage from 7:30 a.m. to 4:30 p.m. on Nov. 10, 2015, “capturing the general vicinity of the lobby of the Van Hoose Education Center, from Stewart Auditorium to just beyond the elevators roughly adjacent to the front desk” and “the general vicinity of the third-floor hallway from the elevators to the far entrance of the communications office."

Herrick wrote that he found two issues with JCPS' response to Setters. First, the district  responded in writing on Nov. 20 -- one day outside the requirement of the state law -- that a written response be made within three business days after the date the request is received. 

Herrick said he found a "procedural violation" of the state's open records law. 

Setters' second request asked for “all video surveillance footage of the lobby of the Van Hoose Education Center,” along with all video and audio recordings from Stewart Auditorium, from Nov. 18, 2015."

JCPS told Setters that it "needed additional time to 'copy the footage into an electronic format for [his] review'; respectively, until Dec. 2 and Dec.7, 2015. It was never explained why the video footage would take longer than three days to copy or why it could not be viewed by Setters onsite within the three-day time frame."

The district's "unexplained need to 'copy the footage into an electronic format' did not clearly fall into one of the categories of unavailability listed (under state law) nor did its responses provide a 'detailed explanation of the cause for further delay," Herrick writes.

Ultimately, JCPS denied both requests for video surveillance footage, with the exception of the footage from inside Stewart Auditorium, saying "disclosure has a reasonable likelihood of exposing vulnerabilities with regard to JCPS’ security and response needs assessment to prevent criminal acts against JCPS, its personnel and the public. Disclosure could also expose vulnerabilities to JCPS’s security system in general."

Setters appealed JCPS' decision to the Kentucky Attorney General Andy Beshear on Dec. 4, 2015. In response, attorney Tyson Gorman provided a more detailed recommendation for the denial:

  • Terrorists, criminals, and mentally disturbed individuals can use the video for planning their attack or criminal activity.
  • This video records the arrival, departure and movement times of key personnel such as the Superintendent.  This would make key personnel more vulnerable to being targeted.
  • Another vulnerability is that perpetrators of domestic violence and stalkers can monitor their victims and document their arrival and departure times.

Herrick wrote in the March 31 opinion that JCPS' arguments in this case "essentially amount to an increased risk of potential harm to employees," which are the "same arguments made by the Kentucky State Police in 15-ORD-041 (holding that video of the lobby of a state police post did not qualify for the homeland security exemption), and thus we reach the same result."

Allison Martin, a JCPS spokeswoman, said Monday that the district "appreciates the Office of the Attorney General's guidance on this issue and is currently reviewing the opinion."

This is the second time in two months that the attorney general's office has found a JCPS violation in the state's open records law in response to a complaint by Setters.

On Feb. 5, the AG's office found that JCPS "violated or subverted" the intent of Kentucky's Open Records Act when it denied Setters access to documents he requested in regards to his children at Fern Creek High School.

In September, The AG's office also ruled that JCPS violated the state's open records law by blacking out too many details from records showing how the school district handled a workplace complaint involving a former high-level employee.


Reporter Antoinette Konz covers K-12 education for WDRB News. She can be reached at 502-585-0838 or @tkonz on Twitter.

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