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 actions of the Western Kentucky Correctional Complex (WKCC) relative to the open records request of James Blair.
In an open records request, dated December 26, 1997, Mr. Blair requested to inspect "all recorded and documented evidence and proceedings of the disciplinary hearing that took place at Western Kentucky Correctional Complex on the date of 2/12/97."
On December 30, 1997, Lt. Barbara Hurley, Chairman Adjustment Committee, WKCC, denied Mr. Blair's request, stating:
KRS 61.872(3) permits a person to inspect public records during regular office hours, of the said agency: however an inmate cannot exercise the right of inspection of documents or tapes at the facility other than that institution which he is housed. The institution does not have the obligation to deliver the tape to your cell or KSP for inspection. See: OAG 88-44.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the Department of Corrections. 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, on behalf of KSR, provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs explained that at the time that Mr. Blair submitted his December 1997 request to WKCC, he was confined in another institution, the Kentucky State Penitentiary. She stated that Mr. Blair had specifically asked to inspect the requested records. Ms. Biggs indicated that he did not request copies and had affirmatively written "none" in the space provided for number of copies requested. She further pointed out that he did not enclose a CPO to have money taken off his account for payment of copies.
Under these circumstances, Ms. Biggs argues that the WKCC's denial of Mr. Blair's request was appropriate. We agree. For the reasons that follow, we conclude that WKCC's December 30, 1997 response to Mr. Blair's December 26, 1997 request was consistent with the Open Records Act and prior decisions of this office.
We note at the outset, that although Mr. Blair's open records appeal was submitted over a year and a half after the agency's denial, we have previously concluded that an open records appeal is not time barred. 99-ORD-56. Accordingly, we will address the merits of the appeal.
In this case, WKCC denied Mr. Blair's request to inspect the requested records because at the time of his request, he was no longer at that institution, having been transferred to KSP. He was advised, however, that he would be provided copies of the requested documents upon payment of the appropriate copying fee. We conclude that this response was proper and consistent with the Open Records Act.
In 95-ORD-105, this office addressed the issue relative to inmates access to records and the requirement of prepayment for copies of requested records, stating:
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 . . .
Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records.
?
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.
Moreover, this office, in both 95-ORD-105 and 96-ORD-70, said, in part, as follows concerning the nondelivery of records by a correctional facility to another facility or to an inmate's cell:
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.
Accordingly, it is the decision of this office that the actions of the WKCC in denying Mr. Blair's request to inspect the requested records due to his transfer and confinement in another institution was consistent with the Open Records Act and these prior decisions of the Attorney General. We further conclude that KSP's offer to provide him copies of requested documents upon prepayment of the appropriate copying fee was also consistent with the Act. KRS 61.872(3); 95-ORD-105.
Finally, in a letter to this office submitted after his letter of appeal, Mr. Blair argues the agency's actions have denied him access to the courts and blocks him from litigating certain cases. In her response to this argument, Ms. Biggs stated:
Mr. Blair insinuates that the records were needed for on-going litigation. If that is true, he could have obtained a free copy by: (1) making a written request for copies of the records; (2) providing the records custodian with a case number of on-going litigation; and proof of indigent status. Until the filing of this appeal, no claim had been made regarding litigation.
Ms. Biggs further advises in her response that there is no conspiracy to keep records from Mr. Blair. She states that if Mr. Blair is unable to come to the records, he may request, and receive, copies upon prepayment of the appropriate fees. As noted, this is consistent with the Open Records Act and prior decisions of this office. 95-ORD-105 and 96-ORD-70. Moreover, as set out above, the agency has outlined the steps Mr. Blair must follow to receive copies of records which he may need for on-going litigation. Under these circumstances, we find no violation 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.