Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
These companion appeals originated in separate requests to inspect public records submitted by Kenneth Caudill to Eastern Kentucky Correctional Complex and the Department of Corrections. On July 24, 1995, Mr. Caudill submitted a request for a copy of his resident record card to his caseworker per EKCC policy. The records request was forwarded to the Records Office on July 25, 1995 where it was approved by Kellie Haney, Records Specialist, and the requested record generated by computer printout. On July 26, Mr. Caudill received a memorandum from Ms. Haney, advising him as follows:
The EKCC Records Department is in receipt of your records request dated 1995-07-24.
As soon as it has been determined that the documents requested are allowed under the Open Records Act (KRS 61.870 thru 61.884), your Money Authorization form will be forwarded to the Inmate Accounts office. Once the funds have been deducted from your account and you receive a receipt stating such, you will need to contact your Caseworker so that he/she can notify the Records Office that the copies have been paid for.
All copies will be paid for prior to receiving them (KRS 61.874).
On July 28, thirty cents was transferred from Mr. Caudill's inmate account. On August 9, 1995, the record was delivered to him.
Mr. Caudill submitted a separate request for a copy of his most recent resident record card to the Offender Records Section of the Department of Corrections on July 26, 1995. On August 1, 1995, Karen DeFew Cronen, Branch Manager of Offender Records, responded to Mr. Caudill's letter advising him to submit his request to the institutional records office, since "they generate the same resident record card as this office." Ms. Cronen's response was postmarked August 9 and received at EKCC on August 11.
In his letter of appeal, Mr. Caudill complains that EKCC is subverting the intent of the Open Records Act, short of denial of inspection, "by a circuitous routing procedure intentionally designed to enlarge the agency's response time beyond that anticipated by the Legislature in enacting the Open Records Act. " It is his position that "once the records had been copied, and the funds deducted from his account, his receipt along with the records should have been forwarded to him on July 28th . . . or at the latest, July 31, 1995." With respect to his second request, Mr. Caudill argues that the fact that the same records can be obtained from the institutional records office does not relieve the Department of Corrections of its duty to release nonexempt public records. Finally, he challenges what he characterizes as the "improper[] use[] of the Act to chill access to information/records by improperly requiring the circuitous procedure set out in Arguments I. and II. . . ." as a precondition to inspection of records relating to the inmate's status. "By making all information known only by resort to the Act," Mr. Caudill concludes, "the Act itsself [sic], ironically, subverts the publics [sic] right to know. . . ."
We are asked to determine if Eastern Kentucky Correctional Complex and the Department of Corrections subverted the intent of the Open Records Act short of denial of inspection in their handling of Mr. Caudill's requests. For the reasons set forth below, we believe that these questions must be answered in the affirmative. The procedures for inspection of public records at EKCC described in Mr. Caudill's appeal resulted in an undue delay in the transmission of those records to him, thus denying him timely access to the records. The Department of Corrections' response to his second request also subverted the intent of the Act by "the misdirection of the applicant . . . ." KRS 61.880(4). Specifically, the Department improperly withheld Mr. Caudill's resident record card on the grounds that EKCC also has custody and control of the record, and did not discharge its duty under the Act by directing him to submit his request to the institutional records office. Despite his impassioned argument, however, we do not believe that the Attorney General can afford Mr. Caudill any relief relative to his final argument. While we agree wholeheartedly that the Open Records Act was never intended to impede access to public records, we believe that EKCC and the Department of Corrections may require inmates to comply with the procedures for inspection set forth at KRS 61.872 as a precondition to inspection, as long as those procedures also ensure timely access to nonexempt public records.
This office has long recognized that an inmate is entitled to a copy of a nonexempt public record only after he pays for that copy pursuant to KRS 61.874. OAG 91-210; 92-ORD-1363; 94-ORD-90; 95-ORD-90. However, in 95-ORD-105 this office analyzed in considerable depth the procedures for inspection of records at EKCC which resulted in delays of up to eleven days. A copy of that decision is incorporated by reference and attached hereto. At page 5 of that decision, we observed:
An inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. Although, as we have recently observed, 'all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof,' an inmate's movements within the facility are presumably restricted, and the manner in which he conducts his financial business dictated by the facility. 94-ORD-90, p. 2; see also, OAGs 79-546; 79-582; 80-641; 82-394; 89-86; 91-129; 92-ORD-1136. Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. This does not, however, authorize a correctional facility to adopt and implement records policies which unreasonably delay access.
The procedural requirements of the Open Records Act 'are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request.' 93-ORD-125, p. 5. It is incumbent on EKCC to streamline its policies by educating its employees, including caseworkers, on the importance of providing a timely response, as well as timely access to records. To the extent that [the requester] was denied timely access to the records he sought, EKCC violated the Open Records Act.
It goes without saying that if a delay in the receipt of records of eleven days is unreasonable, a delay of some sixteen days, which occurred here, is clearly excessive. We yet again remind EKCC of the pointed language of 95-ORD-105, and urge the Records Office to undertake an immediate revision in its records inspection policies. While this office cannot order EKCC to implement a new policy, or otherwise impose penalties for violations of KRS 61.870 to 61.884, the courts are empowered to impose penalties, including "an amount not to exceed twenty-five dollars ($ 25) for each day that [the requester] was denied the right to inspect or copy said public record. " KRS 61.882(5).
Mr. Caudill next complains that the Department of Corrections subverted the intent of the Open Records Act by withholding the copy of his resident record card in its custody, and advising him to submit the same request to the institutional records office. We agree. In OAG 90-71, a copy of which is attached, this office held that if an agency has custody and control of public records it cannot withhold those records simply because they might more appropriately or more easily be obtained from another agency. At page 2 of that opinion, we observed:
When the [agency] receives an application to inspect public records, and the [agency] has custody and control of the requested public records, the [agency] is required by the Open Records Act to notify the applicant in writing of its decision either to comply with the request or to deny the request. If the [agency] decides to deny access to the public records, the written notification to the applicant 'shall 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). When the [agency] receives an application to inspect public records, but the [agency] does not have custody or control of the requested public records, then the [agency] 'shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him.' KRS 61.872 (3).
See also 93-ORD-65; 94-ORD-121. On behalf of the Department of Corrections, Ms. Cronen referred Mr. Caudill to the institutional records office. This was not an appropriate response because Corrections also has custody and control over the record requested. Accordingly, we find that the Department of Corrections subverted the intent of the Open Records Act in its handling of Mr. Caudill's request, and should promptly provide him with a copy of his most recent resident record card.
Turning to the final issue in this appeal, we find that the Open Records Act affords Mr. Caudill no relief from the particular hardships he has experienced as an inmate in a correctional facility where access to records is strictly governed by the Act. The Act is a doubled-edged sword. Although it guarantees the public the right to inspect nonexempt records, it mandates that as a precondition to inspection a requester must comply with certain procedural requirements, including submission of a written request and prepayment for copies. As we have noted, we believe that the Act was never intended to frustrate access to records, and that an agency is statutorily obligated to provide a requester with timely access at a reasonable fee. Nevertheless, we also believe that an agency is justified in enforcing the procedural requirements of the Act. We therefore find that this dispute cannot be resolved in an open records appeal.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.