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 the Open Records Act in responding to Muhammad Thabit Rashad's request to inspect and copy variously described "documents . . . within [its] knowledge or custody. . . ." For the reasons that follow, we find that EKCC's response was only partially consistent with the provisions of the Act.
In a letter dated December 30, 1998, Mr. Rashad requested access to and copies of:
1. Correspondence sent to, or generated by, George R. Million, EKCC's warden, "or his agents," which relates to:
1. All investigative reports and internal memoranda "generated as a result of item No. 1 relating to Muhammad Thabit Rashad";
1. All documents relating to Mr. Rashad's December 7, 1998, "Memorandum In Support of Disciplinary Hearing Held on 11/24/98" which was sent to Warden Million, including Warden Million or his agent's review of the allegations contained therein;
2. All correspondence sent to John Ramsey, chaplain at EKCC, and his responses thereto, concerning the following issues:
1. All correspondence sent to Nova Roe, interim food service manager at EKCC, Warden Million, and Captain Holloway, or their agents, concerning Muhammad Thabit Rashad's religious diet and food service issues including:
In a response dated January 8, 1999, EKCC offender records specialist Martha Stacy denied Mr. Rashad's request. Ms. Stacy advised him that the requested records, namely the letters he sent and the responses received, were not in his file. She suggested that he redirect his requests to the agencies to which his letters were sent. In closing, Ms. Stacy noted that in reviewing his file, she found no investigative reports into the issues identified in his letters, and therefore could not honor this portion of his request. Dissatisfied with EKCC's response, Mr. Rashad initiated an open records appeal.
On February, 1999, Department of Corrections staff attorney Tamela Biggs filed a supplemental response to Mr. Rashad's appeal in which she asserted that EKCC "responded in an appropriate manner to the Open Records request." She explained:
The institutional file would not necessarily contain copies of letters that he has written to an outside entity or individual. The Central Office [file] contains copies of some of the correspondence regarding the Governor; however, this is due to the Governor's Office forwarding it to the Department for response. Ms. Stacy could have enumerated the names, titles and institutional addresses of those institutional people that he should contact regarding specific correspondence (i.e., letters written to John Ramsey, letters to the Food Service Managers and the Warden) . Also, Ms. Stacy could have provided the mailing address of Central Office; however, these are the only "deficiencies" I see in her response to the request. Ms. Stacy would not necessarily know that a letter written to the Governor would be included in the inmate's Central Office file. I was not aware of such practice until pulling the inmate's file to prepare my response.
With respect to his request for records generated in the course of investigations stemming from the various issues Mr. Rashad had raised, Ms. Biggs noted that the institutional staff have no such records because "no such investigations have been conducted." In closing, Ms. Biggs noted that because Mr. Rashad is currently housed in segregation, he cannot "move freely about the institution [and] cannot exercise his request to inspect the records." He can, she concluded, obtain copies of records in the Department's custody upon proper payment of the appropriate reproduction charges.
Based on 95-ORD-105, we find no error in EKCC's refusal to furnish Mr. Rashad with free copies of the records identified in his request, and to permit him to conduct an on-site inspection of those records, given the circumstances of his confinement. In that decision, the Attorney General recognized:
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.
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 two 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, p. 5, 6.
KRS 61.872(3)(b) provides that public agencies must:
Mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing .
Additionally, KRS 61.874(1) provides:
When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate .
(Emphasis added.) 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. It is on this basis that we affirm EKCC's actions relative to delivery of public records. We do not address the issue of whether Mr. Rashad is entitled to free copies because he is involved in ongoing litigation. Our review under KRS 61.880(2) is confined to issues arising under the Open Records Act, not Department of Corrections' records policies, and pursuant to KRS 61.872(3)(b) EKCC may properly require prepayment for copies requested under the Act. Nor do we address the issue of whether EKCC may selectively enforce Department of Corrections' policies prohibiting inmates housed in disciplinary segregation from conducting on-site inspection of facility records. Again, this issue is beyond the scope of our review under KRS 61.880(2).
Nevertheless, we are not persuaded that EKCC's initial response to Mr. Rashad's request satisfied the requirements of the Open Records Act. KRS 61.870(5) defines the term "official custodian" as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody or control." It is incumbent on all public agencies to designate an employee to fill this role and to adopt and post rules and regulations identifying that employee as official custodian (KRS 61.876(1)(b)) so that open records requests can be directed to him for processing (KRS 61.872) and final agency action (KRS 61.880(1)). If he does not have custody or control of the public record requested, he must notify the requester and furnish the name and location of the official custodian of those records. KRS 61.872(4).
Ms. Stacy is designated an offender records specialist and her signature appears at the foot of the open records request form developed by the Finance and Administration Cabinet in the space allocated for the "signature of custodian. " If she is not EKCC's custodian of records, it is incumbent on her to so notify Mr. Rashad, and to furnish him with the name and location of EKCC's custodian. If she is EKCC's custodian of records, it is incumbent on her "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96, p. 7. Simply put, it is not enough for Ms. Stacy to limit her review to Mr. Rashad's institutional file. Instead, she "must expend reasonable efforts to identify and locate the requested records." Id. at 7. Inasmuch as all "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by" EKCC is a public record, within the meaning of KRS 61.870(2), it is incumbent on Ms. Stacy to inquire of Warden Million, Chaplain Ramsey, and Nora Roe whether nonexempt records responsive to Mr. Rashad's request exist, and if so to provide him with copies of those records upon prepayment of reasonable copying charges. This is the search method which can reasonably be expected to produce the records requested. If no such records exist, she is obligated to affirmatively so state. OAG 91-101; OAG 86-38; OAG 90-26, p. 4 (holding, "If a record of which inspection is sought does not exist, the agency should specifically so indicate"). For these reasons, we cannot agree that EKCC "responded in an appropriate manner" to Mr. Rashad's request.
Ms. Stacy did, apparently, make inquiries of institutional staff as to whether any investigations were conducted as a result of Mr. Rashad's letters. With respect to these records, she properly discharged her duties by conducting a search which could reasonably be expected to produce the requested records, and, having failed to uncover any, by specifically so indicating. If, in fact, Ms. Stacy is EKCC's custodian of records, we urge her to employ this same practice in responding to all open records requests. Anything less than this cannot be deemed an adequate search, and does not constitute full compliance with the Open Records Act.
We find no error in EKCC's refusal to provide Mr. Rashad with free copies of the records identified in his request, or to permit him to conduct an on-site inspection of the records while he is housed in disciplinary segregation. When he has accumulated sufficient funds in his account, or has been moved from disciplinary segregation, Mr. Rashad may resubmit his request. It is anticipated that at that time, EKCC will conduct a search which can reasonably be expected to produce the records identified in his renewed request and make all nonexempt responsive records accessible to him by means of on-site inspection or release of prepaid copies.
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.