Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Luther Luckett Correctional Complex violated the Kentucky Open Records Act in its disposition of Lester Wagner's request for copies of specified "disciplinary hearings." Because LLCC has copied the responsive audiocassette tape and agreed to provide Mr. Wagner with access upon his release from the segregation unit or transfer to another institution, nothing more is required. To the contrary, LLCC has exceeded its statutory duty in responding to Mr. Wagner's request.
By letter dated March 28, 2005, Mr. Wagner initiated this appeal, alleging that Lieutenant Jennifer Yount, the "Adjustment Officer," failed to act in response to his request. Upon receiving notification of Mr. Wagner's appeal from this office, Charlene J. Hoke, Open Records Coordinator, advised this office as follows:
Inmate Wagner sent an open records request in on 3/18/05. It was logged that day and sent to the Adjustment Committee. Lt. Jennifer Yount copied the tape and returned it to my office on 3/27/05. Lt. Yount's off days were 3/25 and 3/26/05. Five working days would 3/27/05. I do not work on Sunday [not a "working day" under KRS 61.880(1)], therefore when I came in on Monday, 3/28/05, I sent the tape to Officer Alexander in the Legal Library where inmates are allowed to listen to tapes.
Inmate Wagner has been locked up in SMU since February 24, 2005[,] and did not have access to the legal library. Inmate Wagner was notified and knew the tape was in the library waiting for him. Joe Macanka[,] Special Unit Management, CUAII, went to the library today and picked up the tape for Inmate Wagner. The tape was put into Inmate Wagner's property and he can hear the tape when he is release[d] from SMU or transferred.
In a letter dated April 21, 2005, Emily Dennis, Department of Corrections Staff Attorney, elaborated upon the position of the LLCC. Having quoted Mr. Wagner's request, Ms. Dennis correctly observes:
Pursuant to KRS 197.025(7), the Dept. of Corrections has five (5) working days, excluding Saturdays, Sundays, and legal holidays, to respond to a request. Friday, 3/25/200[5], was Good Friday holiday. On the next working day - Monday, 3/28/2005 - Ms. Hoke responded to the request by informing Mr. Wagner that the tape had been copied pursuant to his request and delivered to Officer Alexander so Mr. Wagner could listen to it. As explained by Ms. Hoke in her 4/5/2005 letter, Officer Alexander works in the legal library and this is where inmates are allowed to listen [to] tapes. Since Mr. Wagner was housed in the segregation unit at the time of his request, she could not send a copy of the adjustment hearing tape directly to him.
Kentucky law contemplates access to public records by two means: inspection or copies. KRS 61.872(3). The Attorney General has recognized, if the circumstances of a person's incarceration prohibit the person from inspecting a public record, a public agency may also properly deny a copy of the public record. KRS 61.874, 03-ORD-152, 95-ORD-105. Audiocassette tapes are not permitted property in the segregation unit, pursuant to LLCC policy for special management inmates [a copy of which is attached to Ms. Dennis' response].
The Kentucky Open Records Act does not obligate a state prison to provide the audiocassette tape to a third party (such as the officer assigned to the inmate law library) or even store the audiocassette tape with an inmate's personal property pending the inmate's release from segregation. Ms. Hoke could have properly denied Mr. Wagner's request and required him to resubmit the request for copies when he was released from segregation. Instead, she made the copy and put it in storage in a location at the institution, so Mr. Wagner could hear the tape when he is released from segregation or transferred to another institution.
Based on the foregoing, Ms. Dennis argues that Ms. Hoke's response on behalf of LLCC should be upheld. Because the position of LLCC is consistent with governing precedent, its disposition of Mr. Wagner's request is affirmed in its entirety. 1
In addressing the unique issues surrounding access to public records in this context, the Attorney General has repeatedly 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 . . . Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records.
95-ORD-105, p. 3, citing 94-ORD-90, p. 2. n2 See also 92-ORD-1136; OAG 91-129; OAG 89-86; OAG 82-394; OAG 79-582; OAG 79-546.
When copies of public records are requested, "the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." KRS 61.874(1). Neither this provision nor the remainder of the Open Records Act contains a waiver of this requirement for inmates. Accordingly, the Attorney General has previously held that correctional facilities such as LLCC may properly require prepayment of copying fees, and enforce standard policies regarding assessment of charges against inmate accounts despite the delay in processing the request which may inevitably result. 95-ORD-105, p. 3. However, this holding has not been construed to authorize any delay beyond that which is reasonably necessary to ensure prepayment of copying charges. Id.
By the same token, an inmate may be foreclosed from exercising the right to inspect public records prior to obtaining copies. Although the Open Records Act contemplates access by one of two means, on-site inspection during the regular office hours of the agency or receipt of copies through the mail, the former approach to inspection may pose a problem in the restrictive environment of a correctional facility. KRS 61.872(3); 95-ORD-105, p. 3. "Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined." Id. If the inmate is prohibited from moving freely around the facility, as is the case here, and is therefore unable to conduct an on-site inspection in the office where the records are maintained, "the facility is under no obligation to bring the original records to his cell for inspection. " Id.; 99-ORD-181; 96-ORD-070. Under such circumstances, the facility may deny access as correctly observed by the DOC. 03-ORD-152, p. 2. In the same vein, an agency is not required to furnish the record to a third party. Id. It stands to reason that LLCC did not violate the Open Records Act in voluntarily taking such action on behalf of Mr. Wagner.
Of particular relevance here, this office upheld the policy adopted by the Kentucky State Penitentiary with respect to inmates housed in disciplinary segregation. 98-ORD-157. As observed by the Attorney General:
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.
98-ORD-157, pp. 3-4. Because the instant appeal presents no reason to depart from this line of decisions, the same result necessarily follows. To its credit, LLCC went "above and beyond" in responding to Mr. Wagner's request; no violation occurred.
A party aggrieved by this decision may appeal it by initiating an 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. Lester Wagner, # 158915Luther Luckett Correctional ComplexP.O. Box 6LaGrange, KY 40031
Joann SearcyRecords Custodian Luther Luckett Correctional ComplexP.O. Box 6LaGrange, KY 40031
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has long held that if access to public records for which inspection or copying is being sought is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Absent evidence to the contrary, this office assumes that LLCC will provide Mr. Wagner with access to the tape as agreed, at which point any substantive issues relative to those records will become moot.
On appeal, LLCC has adequately addressed the procedural violation. Although it is unclear from the record whether Ms. Hoke initially responded in writing as required by KRS 61.880(1), LLCC otherwise complied with KRS 61.880(1) and KRS 197.025(7) by responding in a timely fashion, and went beyond the requirements of the Open Records Act in arranging to have a copy of the tape made available to Mr. Wagner upon his release from segregation, as correctly explained by both Ms. Hoke and Ms. Dennis on appeal. In addition, Mr. Wagner acted prematurely in filing his appeal on March 28, 2005, the final day for response pursuant to KRS 197.025(7). In short, further analysis of this issue is unwarranted on the facts presented.