Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the Northpoint Training Center's response to Steve L. Monroe's open records request for copies of (1) Corrections Policies and Procedures (CPP 15.5), Northpoint Training Center (NTC 15-01-01), (2) Law Library Case Law -
Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), and (3) KRS 61.870 to 61.884.
Kathy Prall, Lieutenant, Open Records Coordinator, Northpoint Training Center, responded to Mr. Monroe's request, stating in relevant part:
I am in receipt of the correspondence regarding Open Records. You asked for copies, but failed to include authorization for payment. Pursuant to KRS 61.874, the custodian may require a written request and advance payment of fees for copying.
Upon receipt of a signed authorization to use inmate account, you will be forwarded CPP 15.5 and NTC 15-01-01.
Your request for copies of KRS 61.870 to 61.884 and case law Sandin v. Conner is denied as these are not public records as defined by the statute.
Mr. Monroe appeals the denial of that portion of his request for copies of KRS 61.870 to 61.884 and the case law of Sandin v. Conner .
After receipt of Mr. Monroe's letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, supplemented Ms. Prall's response and addressed the issues raised in the appeal. In her response, Ms. Biggs stated:
It is the opinion of this office that the inmate's request for "law library case law - Sandin v. Conner . . . ." should be denied. The term "public record" is defined in KRS 61.870(2) as "all books, papers, maps. . . prepared, owned, used, in the possession of or retained by a public agency. "
. . .
While a Supreme Court Reporter is a "book" in the sense that it is a bound volume containing standards and rules by which subsequent conflicts are to be resolved, it is not a "record" of either the Department of Corrections ("Department") or Northpoint Training Center ("Northpoint").
City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811 (Ky.Ct.App. 1974), stated at 816:
OAG 82-27, p. 3, stated:
The Supreme Court Reporter does not cross the second threshhold and would not constitute a "public record" under the Act. Corrections Policies and Procedures, institutional files and Central Office files are all examples of records, which, barring the application of an exception under KRS 61.878 or 197.025 would reflect the daily functioning, programs and operations of Northpoint and the Department. The Supreme Court Reporter is a "publication" which is commonly defined as an issue of any printed material offered for sale or distribution. The Supreme Court Reporters are available in the Northpoint law library and may be inspected by any inmate during its regular hours of operation, seven days a week. The inmate may request assistance in obtaining a copy from his inmate legal aide or the librarian.
The issue presented here is whether Northpoint's denial of Mr. Monroe's open records request for a copy of Kentucky statutes and a case from the Supreme Court Reporter, both of which are available in the institution's law library, was a violation of the Open Records Act. For the reasons that follow, we conclude that the denial of Mr. Monroe's request for copies did not constitute a violation of the Act.
The "basic policy" of the Open Records Act, recognized by Kentucky's courts, and until recently codified at KRS 61.871, "is to afford free and open examination of public records. "
Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992);
Frankfort Publishing Co., Inc. v. Kentucky State University, Ky., 834 S.W.2d 688 (1992).
We note at the outset that Mr. Monroe was not denied either access to or the inspection of the statutes or Supreme Court decision of which he requested copies. The Department indicated that these documents are readily available for Mr. Monroe's inspection in the Northpoint law library during its regular hours of operation, seven days a week. The Department further indicated that Mr. Monroe may request assistance in obtaining a copy of the records he seeks from his inmate legal aide or the librarian.
Mr. Monroe argues that the Supreme Court Reporter case law and the Kentucky Revised Statutes are "public records, " and, thus, subject to the provisions of the Open Records Act. KRS 61.870(2) defines "public record, " as follows:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
Although the statute book and case law book involved here are owned, used, and retained and in the possession of the Northpoint law library, they are neither prepared by nor relate to the functioning of either Northpoint or the Department. In our view, while those records may technically be "public records, " since they are "retained by a public agency, " their disclosure would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act.
We agree with the Department's position that the statutes and Supreme Court Reporter case law in the inmate law library are publications or library reference materials rather than records which reflect the daily functioning, programs and operations of Northpoint or the Department. We conclude that these records are not "public records" subject to the provisions of the Open Records Act.
Other jurisdictions have recognized this distinction. See,
Baizer v. U. S. Dept. of Air Force, 887 F.Supp. 225 (N.D. Cal. 1995), where the court held that because the Department of the Air Force's computer database containing decisions of the United States Supreme Court constituted "library reference material," it was not an "agency record" for purposes of the Freedom of Information Act (FOIA) and held the agency properly denied the request for a copy of the database.
Since Mr. Monroe resides at Northpoint and the law library is housed in the same institution, the requested records are readily available for his inspection. As noted above, the Department indicated that Mr. Monroe may request assistance in obtaining a copy of the records he seeks from his inmate legal aide or the librarian.
Accordingly, we conclude Northpoint's denial of Mr. Monroe's request for copies of the statutes and case law, under the facts of this case, was proper and consistent with the requirements 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.