Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Luther Luckett Correctional Complex (LLCC) violated the Open Records Act by requiring Anthony Mattingly to pay for the record he requested by either check or money order, rather than by cash. For the reasons that follow, we find that LLCC's requirement did not violate the Act.
By letter dated June 10, 2003, Mr. Mattingly, an inmate at the Hardin County Detention Center, submitted a request to LLCC requesting a "copy of my property inventory when I was transferred from Luther Luckett to Perry County Class-D." Along with the request, he enclosed ten cents to pay for the record.
By letter dated June 17, 2003, Carol Black, Offender Records Supervisor, responded to Mr. Mattingly's request, advising him that she could not accept cash for copies of records, that she must receive a check or money order made out to the Kentucky State Treasurer. Along with her response, Ms. Black returned the ten cents to Mr. Mattingly.
As a result, Mr. Mattingly initiated the instant appeal to this office appealing LLCC's decision to turn down his request due to the form of payment.
After receipt of the notification of the appeal, Ms. Black, Offender Records, LLCC, and Emily Dennis, Office of General Counsel, Department of Corrections, submitted a joint response to the issues raised in the appeal.
Elaborating on her original response, Ms. Black, stated:
As a preliminary note, my response incorrectly identified the document requested as a copy of Mr. Mattingly's property inventory when received at LLCC, when actually what Mr. Mattingly requested was a copy of his property inventory upon transfer from LLCC. The document requested does exist. However, for reasons set forth herein, my response to Mr. Mattingly should be upheld by the Attorney's General Office, since it was issued in compliance with the Kentucky Open Records Act and 501 KAR 6:020, Corrections Policy and Procedure (CPP) 6.1, Open Records Law.
KRS 61.874 allows a public agency to prescribe a reasonable fee for copies of records and to require that the fee be paid in advance. CPP 6.1 establishes the appropriate procedure for release of public records and applies to all employees of Corrections and contract facilities. CPP 6.1 VI (2)(e) (attached hereto) states "the fee shall be paid by check or money order made payable to Kentucky State Treasurer". Also attached is a Memorandum from Martha Eisner, Accountant Supervisor, LLCC, which explains that there is no account at LLCC through which cash money for copies made pursuant to open records requests may be deposited. Cash transactions by state inmates are prohibited at state penal institutions. In addition, cash is not authorized as inmate property and may be confiscated from state inmates as contraband. The prohibition of cash transactions for copies at LLCC extends not only to inmates, but also to employees and requests for records received from the public sector. The prohibition of cash transactions for records is related to a legitimate penological concern for the safe and secure operation of the institution. Thus, pursuant to CPP 6.1, KRS 61.874, and institutional accounting procedures, I properly returned the cash ($ .10) and stated Mr. Mattingly must pay for the record he requested by check or money order made out to the KY State Treasurer.
In her portion of the joint response, on behalf of the Department of Corrections, Ms Dennis explained:
Mr. Mattingly states in his letter that "I am incarcerated and have no way to get check or money order. The institution does not forward money without an astrological fee." These allegations are unsubstantiated. In fact, I spoke to Teresa Bailey, Administrative Secretary for the Hardin County Detention Center, who advised that the Jailer allows inmates at his facility to possess up to $ 10 in cash. She advised that the proper procedure for Mr. Mattingly to follow is to submit an inmate request for a check or money order to Jenny Lawson, who coordinates inmate accounts at the Hardin County Detention Center. The fee for the document identified at LLCC plus postage is forty-seven cents. Upon proper payment of the fee for a copy of the document plus postage, Mr. Mattingly will receive the document he requested. However, there was nothing improper about LLCC denying Mr. Mattingly's request for reason that LLCC cannot receive cash for copies. For the reasons set forth above, the Department respectfully requests the Office of Attorney General to uphold LLCC's response to Mr. Mattingly's request.
In 95-ORD-105, this office 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. This does not, however, authorize a correctional facility to adopt and implement records policies which unreasonably delay access.
95-ORD-105, p. 5.
In 96-ORD-226, we held that a Kentucky State Penitentiary internal policy requiring inmates to submit a commissary purchase order along with their open records request was consistent with the requirement under KRS 61.874(1) of advance payment for copies of records and did not constitute a violation of the Open Records Act.
Under the facts and circumstances of this appeal, we find no error in LLCC's and the Department's policy and procedure that require that copies of records requested pursuant to an open records request be paid for by check or money order and not by cash. As LLCC explained in its supplemental response, there is no account at LLCC through which cash money for copies may be deposited; cash transactions by state inmates are prohibited at state penal institutions; and cash is not authorized as inmate property and may be confiscated from state inmates as contraband. The prohibition of cash transactions for copies at LLCC extends not only to inmates, but also to employees and requests for records received from the public sector. The LLCC stated that the basis for the policy prohibiting cash transactions related to the legitimate penological concern for safe and secure operation of the institution. This office has recognized that the Department of Corrections is vested with broad discretion in matters related to the safety, security, and operation of its institutions. See 94-ORD-40. We are not in the position to second guess the Department or to conclude that the prohibition of cash transactions was an abuse of this discretion.
Moreover, we do not believe that the institution's policy and procedure requiring prepayment by either check or money order unduly impede Mr. Mattingly's access to the record he sought. The LLCC has not denied his request. It has indicated that he will be provided the record he requested upon proper prepayment for the record. Ms. Dennis indicated that she had contacted the Hardin County Detention Center and, in her response, sets forth the procedure Mr. Mattingly should follow to submit an inmate request for a check or money order at the Detention Center and provided the name of the person there who coordinates inmates accounts. On these facts, 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.
Distributed to:
Anthony Mattingly #115494Hardin County Detention CenterP.O. Box 1390Elizabethtown, KY 42702
Carol BlackRecords SupervisorLuther Luckett Correctional CenterP.O. Box 6LaGrange, KY 40031
Emily DennisDepartment of Corrections2439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400