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 Kentucky State Penitentiary violated the Open Records Act in responding to a series of requests submitted by William Patmon. For the reasons that follow, we find that KSP did not violate the Act.
Mr. Patmon furnished us with a copy of only one of his many requests which were apparently submitted between May, 1998, and August, 1998. An inmate housed in disciplinary segregation at Kentucky State Penitentiary, Mr. Patmon asked to inspect "medical records regarding the '5-7-98 Stabbing Incident' [he] suffered." His initial requests were denied on the basis of KRS 61.874 because he lacked sufficient funds in his inmate account to pay for copies of the records. Subsequent demands to inspect the records in lieu of payment for copies were denied because he was housed in disciplinary segregation, and "not permitted to freely move about the facility. . . ." In their final written exchange, medical records custodian Nancy Duncan suggested to Mr. Patmon that he resubmit his request when he is released from disciplinary segregation, or when he has sufficient funds in his inmate account to pay for copies.
Mr. Patmon complains that Ms. Duncan has "inappropriately" and "discriminatorily" denied him access to his records based on his custody level and housing assignment, noting that "Death Row inmates, Protective Custody inmates, and General Population inmates are escorted to the hospital (especially when need be) for different medical reasons daily." It is his position that "accommodation must be appropriately given to all inmates; an inmate might have a lengthy stay in '3 Cellhouse,' if so, he shouldn't be denied because he has to be escorted. " (Emphasis in original.) We do not share Mr. Patmon's view.
In 95-ORD-105, we disposed of the issues which Mr. Patmon raises. It is instructive to quote at some length:
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.
?
It is the opinion of this office that [a correctional facility] may properly require prepayment for copies of public records which are requested by inmates. KRS 61.872(3)(b) provides that public agencies must:
Additionally, KRS 61.874(1) provides:
These statutes contain no provision for waiver of the prepayment requirement for inmates. It is, in our view, entirely proper for the facility to require prepayment, and to enforce its standard policy relative to assessment of charges to inmate accounts, despite the delays this may entail. As noted, however, this holding should not be construed to authorize any delay other than that which is reasonably necessary to insure prepayment of copying charges.
By the same token, and depending on the circumstances of his confinement, an inmate may be foreclosed from asserting the right to inspect public records prior to obtaining copies. Although the statute contemplates records access by one of the means, on-site inspection during the regular office hours of the agency or receipt of the records from the agency through the mail, access via on-site inspection may pose a problem in the restrictive environment of a correctional facility. KRS 61.872(3). Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined. And, if he is prohibited from freely moving about in the facility, and therefore cannot conduct an on-site inspection in the records office, the facility is under no obligation to bring the original records to his cell for inspection.
95-ORD-105, pp. 5, 6.
While we recognized in 95-ORD-105 that a correctional facility cannot adopt and implement records policies which unreasonably delay inmate access, we find no error in KSP's policy relative to inmates housed in disciplinary segregation. We are advised that disciplinary segregation is reserved for inmates who have violated institutional policy or assaulted a staff member or another inmate. Its purpose is to severely limit the inmate's movement within the institution. The Open Records Act does not require that an inmate who has been placed in disciplinary segregation be furnished with an escort so that he may exercise his right of on-site inspection, or that the records custodian bring the records to him. He may conduct an on-site inspection, subject to the facility's governing open records policies, after he is released from disciplinary segregation, or he may access the records by receipt of copies when there are sufficient funds in his inmate account to pay for those copies. Until that time, he "must accept the necessary consequences of his confinement. " 95-ORD-105, p. 5.
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.