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 Kentucky State Penitentiary's denial of the open records request of Uriah Marquis Pasha, an inmate at the institution, which requested the following:
I would like to review at no cost to me Southwest Reporter 887 2<nd> 547 (Ky 1994) Gabbard v. Commonwealth of Kentucky, maintained in the Inmate Law Library.
Patti Treat, Custodian of Records, at the penitentiary, denied Mr. Pasha's request. Relying upon KRS 61.872 and OAG 82-629, Ms. Treat highlighted an annotation of OAG 82-629, which read:
Although a prison inmate has the same right to inspect public records as any other person, it is not incumbent upon a public agency to provide records to inmates who are unable to go to the office where the records are kept because of their legal confinement.
In his letter of appeal, Mr. Pasha argues he is being denied access to the Legal Office and Law Library due to his Segregation status and that he is without access to the court with a pending criminal case in which his capacity to stand trial is in question.
After receipt of Mr. Pasha's letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. Elaborating on Ms. Treat's denial, Ms. Biggs stated that the document requested by Mr. Pasha was not a "public record" as defined by KRS 61.870(2). She further explained:
The penitentiary does not "deprive inmates" of the right to inspect public records. If an inmate asks to inspect a record while he is housed in segregation, he is offered the opportunity to either pay for a copy of the record or re-apply for the opportunity to inspect once he is released from segregation. If, as Mr. Pasha claims, the document is needed for litigation purposes, he needs to apprise staff of that fact. If an inmate can produce a copy of a filed complaint or any other pleading which bears as active case number, an inmate who meets the Department's guidelines for indigency may receive a free copy of the requested document for filing with the court. Mr. Pasha is trying to mix the procedures utilized for requesting copies of public records under the Open Records Act and discovery in active, on-going litigation. Different rules apply for each; however, it is the inmate's responsibility to prove indigent status and that the document is required for filing with the court.
Ms. Treat was correct to refer Mr. Pasha to OAG 82-629; however, it is the opinion of this office that the document being requested is not a "public record" and the institution does not have to provide a copy pursuant to an open records request.
The issue presented here is whether the penitentiary's denial of Mr. Pasha's request for a copy of a case decision from Southwest Reporter system, at no cost, was a violation of the Open Records Act. For the reasons that follow, we conclude that the denial was consistent with the Act and prior decisions of this office and, thus, did not constitute a violation.
In 99-ORD-35, this office held that the Northpoint Correctional Complex properly denied an inmate's request for copies of a statute and a case from the Supreme Court Reporter as such were not "public records" as defined in KRS 61.870(2). In reaching that conclusion, we stated:
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.
95-ORD-35 is controlling on this issue. We conclude that the penitentiary did not violate the Open Records Act in denying Mr. Pasha's request for a copy of a court decision from the Southwest Reporter.
Moreover, in 95-ORD-105, this office addressed the issue relative to inmates and access to 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.
In both 95-ORD-105 and 96-ORD-70, this office said, in part, as follows concerning the nondelivery of records by a correctional facility 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 penitentiary in denying Mr. Pasha's request for a copy of a court decision due to his confinement in disciplinary segregation was also consistent with the Open Records Act and these prior decisions of the Attorney General. We further conclude that the penitentiary's offer to provide him copies of the requested document upon prepayment of the appropriate copying fee or to reapply for the opportunity to inspect once he is released from segregation was also consistent with the Act. KRS 61.872(3); 95-ORD-105.
As noted above, the penitentiary indicated that Mr. Pasha was denied access to the inmate library due to his confinement in segregation. In 98-ORD-157, we found no error in the penitentiary's open records policy relative to inmates housed in disciplinary segregation. There, we stated:
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.
Accordingly, we conclude that the penitentiary's action in this regard was consistent with the Open Records Act and our decision in 98-ORD-157. In addition, the penitentiary has outlined the procedures an inmate must follow to meet the guidelines for indigency and receive a free copy of the requested document, if needed for litigation purposes. Under the facts presented in the instant appeal, 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.