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 by refusing to issue a check from Gerald Gibbins' inmate account to the circuit court clerk for copies of records relating to the Commonwealth of Kentucky's criminal action against him. Acknowledging that this appeal comes to us in a jurisdictionally irregular posture, we nevertheless affirm EKCC policy on the basis of 95-ORD-105.
We begin by noting that disputes relating to access to records of the courts and judicial agencies are not, in general, subject to review by the Attorney General. On this issue, the Attorney General has observed:
Our decision [that the courts and judicial agencies are not bound by the Open Records Act] is based on KRS 26A.200, KRS 26A.220, and the Kentucky Supreme Court's decision in Ex parte Farley, Ky., 570 S.W.2d 617 (1978). In Farley, the Supreme Court held that the records generated by the courts are not subject to statutory regulation. "Records in the hands of the clerk, " the court noted, "are the records of the court." Farley at 624. The court thus held that although "there is very little in the policies evinced by the Open Records Law that we could not accept as a matter of comity . . . some details of the law . . . present interferences that we regard as inconsistent with the orderly conduct of our own business, and those we do not accept." Farley at 625. The Attorney General has relied on this language in consistently holding that the courts and judicial agencies are not bound by the provisions of the Open Records Act except to the extent that those provisions are not in conflict with the court's rules and regulations governing access to its own records, and are accepted as a matter of comity. OAG 78-262; OAG 79-174; OAG 85-9; OAG 91-45; 93-ORD-47; 95-ORD-89; 96-ORD-173; 97-ORD-138.
. . .
It is for the court, and not this office, to determine which policies evinced by the Open Records law present interferences with the orderly conduct of its business, and which policies it will accept as a matter of comity. Simply stated, disputes relating to access to court records must be resolved by the court.
98-ORD-6, p. 1, 2. Thus, this office has traditionally declined to intercede in these matters.
Because the dispute before us implicates broader records access issues than the narrow issue of access to court records, we proceed with an analysis under the Open Records Act for the limited purpose of affirming EKCC's fiscal policy relative to the transfer of funds from inmate accounts. In a response directed to this office following commencement of Mr. Gibbins' appeal, EKCC's fiscal manager, Sandra M. Thompson, defended that policy:
Due to various costs and fees charged by the courts and other agencies, Eastern Ky Correctional Complex's Inmate Accounts only processes a check for the actual amount payable on a particular invoice. An inmate should contact the agencies or court with his request. The inmate should have the agency submit an invoice to him. The invoice, with an authorization to charge the inmate's account, should be forwarded to Inmate Accounts. A check will then be issued to the appropriate court or agency and mailed in an envelope provided by the inmate.
This has eliminated the return of checks from different agencies and courts because of inaccurate amounts. When a check is returned, Inmate Accounts has to void the check, credit the individual inmate's account and then issue a check for the correct amount. Our present practice eliminates a lot of unnecessary work.
Ms. Thompson indicated that the inmate population and program staff have been apprised of this policy.
Recognizing that EKCC's policy may impose a hardship on inmates attempting to secure access to public records, we nevertheless find that 95-ORD-105 is controlling on this issue. At page 5 and 6 of that decision, the Attorney General observed:
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," as 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, OAG 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.
Critical to the holding in 95-ORD-105 was the assumption that such records policies would not be employed to unreasonably delay, or impede altogether, inmate access to public records. To the extent that the records requested by an inmate are records of a public agency, as defined in KRS 61.870(1), and excluding records of the courts and judicial agencies, we affirm EKCC's transfer of funds policy absent proof that the policy is being used to delay or impede access to public records.
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 proceedings.
Gerald Gibbins, # 116299Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Sandra M. ThompsonEastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Tamela BiggsDepartment of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadFrankfort, KY 40602-2400