Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex violated, or otherwise subverted the intent of, the Open Records Act in responding to Raymond David Watson's November 11, 1997, request to inspect "records relating to the exact number of copies [he] made from April 1996 up to the present under [his] indigency status, including a breakdown of how many copies from month to month." Consistent with the position we took in 95-ORD-105, 96-ORD-7, and 97-ORD-27, we find that EKCC subverted the intent of the Act in its handling of Mr. Watson's request.
As noted, on November 11, Mr. Watson, an inmate then housed at EKCC, submitted his request. The request arrived at the office of the open records coordinator, Martha Prater, on November 13. Three days later, Ms. Prater notified Mr. Watson that his request had been forwarded to the law library, and that library staff would be in touch with him. On November 19, Mr. Watson was transferred to Kentucky State Reformatory.
In a memorandum to this office, Rhonda Easton, librarian at EKCC, stated that upon receipt of Mr. Watson's request she notified him that she could not honor his request to inspect records relating to the number of copies he made from April 1996 to the present because he had been transferred to KSR. Ms. Easton did not indicate on what day this letter was mailed to Mr. Watson. On December 22, 1997, she received a letter from Watson asking that she advise him how much it would cost to duplicate the records. Ms. Easton stated that on January 8, she notified Mr. Watson that she was "currently computing . . . how much the copies will cost." Ms. Easton advised him that these computations would "take some time to do." She indicated that she would send "this information" to him "as soon as I have it completed." In her January 13 memorandum to this office, she stated that she was "approximately half-way thru the material computing the coping [sic] costs." It is this delay in computing the cost of copies that we find improper.
At page 3 of 97-ORD-27, this office noted that although KRS 61.880(1) requires a state agency to make a determination and provide notification [regarding an open records request] within a three day period," we believe that this provision must be read in tandem with KRS 61.872(5), which provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
Continuing, we observed:
Together, these provisions mandate both notification and records access within three days. Any delay in excess of three days must be accompanied by a detailed explanation of the cause, and notice to the requester of the place, time, and earliest date on which the record will be available. Although there are, no doubt, many practical difficulties for correctional facilities relative to compliance with these provisions, the Open Records Law does not recognize an exception for such facilities.
Where a request is made for copies of records, the facility may require prepayment of copying charges. KRS 61.872(3)(b); KRS 61.874(1). This requirement should not, however, be used to impede access to records by enlarging the statutory agency response time beyond that which is reasonably required for the conduct of business. We suggest that EKCC focus on this aspect of its records inspection policy in its effort to expedite records access. Although EKCC has made significant strides in streamlining its policy, we cannot yet say that its records policies, which in this case resulted in a nine day delay, fully comply with the procedural requirements of the Open Records Act.
97-ORD-27, p. 3 (emphasis in original).
Although we find no error in Ms. Prater's original response to Mr. Watson, we are troubled by Ms. Easton's delay in notifying him how much copies of the requested records would cost. Mr. Watson asked that she advise him of the cost of the records in a letter which she received on December 22. As of January 13, she had not completed her computation of the cost of copies. Ten business days elapsed between the date of Mr. Watson's request for copies and the date she notified him that she was computing the cost. Twelve business days after his revised request, Ms. Easton was only "half-way thru the material computing the coping [sic] costs." We believe that this delay is clearly excessive, and remind EKCC that the requirement of prepayment for copies "should not . . . be used to impede access to records by enlarging the statutory agency response time beyond that which is reasonably required for the conduct of business." 97-ORD-27, p. 3. EKCC should immediately notify Mr. Watson of the copying costs for the records identified in his request so that he can make arrangements for prepayment through inmate accounts. Any additional delays, other than those which are reasonable necessary to insure prepayment of copying charges, shall be deemed to constitute a clear subversion of the intent of the Open Records Act.
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.