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 Marion Adjustment Center violated the Open Records Act in failing to respond to Marcus Greene's July 2, 2003, request for a "copy of Adjustment Committee Hearing Tape from Marion Adjustment Center - Hearing date 9/5/02, Tape 682, Side A, Begin 234, End 390. Hearing was for Marcus Greene, # 155874." For the reasons that follow, we conclude the actions of MAC did not violate the Act.
In his letter of appeal, dated July 21, 2003, Mr. Greene indicated that MAC had yet to respond to his request.
After receipt of notification of the appeal and a copy of Mr. Greene's letter of appeal, Caroline W. Mudd, Warden, MAC, by letter dated July 28, 2003, provided this office with a response to the issues raised in the appeal. In her response, Warden Mudd advised:
I am in receipt of an Open Records Appeal, log number 200300348 involving inmate Marcus Greene # 155874. Inmate Greene states he submitted the open records request on July 02, 2003 via the legal department at Northpoint Training Center.
Please be advised, as of today's date there has been no such request ever received in my office, nor a department of Marion Adjustment Center. It is my duty to follow policy and procedures and to ensure my staff follow them as well. There was no denial or refusal to comply with this request.
Subsequently, the cost for a copy of an adjustment committee hearing is $ 5.00 per tape. Inmate Greene will need to send payment along with a request to Marion Adjustment Center. Per [sic] once payment is received the copy of the hearing will be released and mailed to inmate Greene.
Warden Mudd's letter to this office indicates that a copy of her response was sent to Mr. Greene.
We are asked to determine whether the actions of the MAC violated the Open Records Act. For the reasons that follow, we conclude that the actions of MAC did not constitute a violation of the Act.
First, we address Mr. Greene's contention that the agency failed to respond to his request. In her response, Warden Mudd advised that neither she nor any department of MAC ever received the request from Mr. Greene. We have insufficient information to address this issue and, thus, make no finding in this regard. We have no reason to doubt the agency's assertion that it had not received the request. Obviously, an agency cannot respond to a request it does not receive.
Next, we address the substantive issue in this appeal, i.e., MAC's requirement of prepayment of copying fees prior to providing the copy of the tape. Under the Open Records Act, a correctional facility may properly require prepayment for copies of public records that are requested by inmates. KRS 61.874(1); 98-ORD-157. We conclude the MAC's actions in this regard did not violate the Open Records Act. Accordingly, Mr. Greene, if he has not already done so, should make the necessary arrangements to send payment along with his request to MAC in order that he may receive a copy of the requested tape.
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.
Marcus Greene, # 155874Northpoint Training CenterP.O. Box 479, Dorm # 6Burgin, KY 40310
C. Mike MoultonAttorney at Law58 Public SquareElizabethtown, KY 42701
Caroline Mudd, WardenMarion Adjustment CenterHighway 84, P. O. Box 10St. Mary, KY 40063-0010