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Request By:
Harold Jones, # 137917Jackie T. Strode, Jailer
Warren County Regional Jail
920 Kentucky Street
Bowling Green, KY 42101Amy Milliken
Warren County Attorney
206 Justice Center
1001 Center Street
Bowling Green, KY 42101

Opinion

Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

At issue in this appeal is whether the Warren County Jailer violated the Kentucky Open Records Act in denying Harold Jones' request for various records and information concerning the facility. Insofar as the Jailer failed to recognize his duty to provide access by sending copies of public records by mail, the Jailer violated KRS 61.872(3). Having neglected to advance a statutory basis for denial, the Jailer must provide Mr. Jones with a copy of any existing record in his custody which is responsive to Mr. Jones' request "upon receipt of all fees and the cost of mailing" in accordance with KRS 61.872(3)(b), unless the Jailer can meet his burden of proof under KRS 61.880(2)(c) by articulating the basis for denying access in terms of one or more of the statutory exceptions codified at KRS 61.878(1)(a) through (n) in a written response.

On August 17, 2007, Mr. Jones submitted a handwritten request for the following:

1) Records/documents showing the inmate count numbers from 8/09/07

2) An inventory and/or purchase invoice receipt and/or any record/document showing the number of inmate mattresses contained in the Warren County Regional Jail

3) The maximum capacity standard for the Warren County Regional Jail

Having received no response to his request, Mr. Jones initiated this appeal by letter dated September 10, 2007.

Upon receiving notification of Mr. Jones' appeal from this office, Jailer Jackie Strode responded, 1 observing that Mr. Jones did not send this office a "correct copy of what he sent me." 2 According to Jailer Strode, Mr. Jones "was transported by the Dept. of Corrections (Probation and Parole) before he could inspect records. As he [was] no longer here, he could not inspect records." 3 In addition, Jailer Strode noted that Mr. Jones' "last Open Records request was honored and he did inspect the records he requested on 8-6-07." 4

By the same token, an inmate may be foreclosed from exercising the right to inspect public records prior to obtaining copies. Although the Act contemplates access by one of two means, on-site 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. However, Mr. Jones requested copies and "may access the records by receipt of copies when there are sufficient funds in his inmate account to pay for those copies." Id., p. 5.

KRS 61.872 establishes the guidelines for accessing public records under the Act. More specifically, resolution of this appeal turns on the mandatory language of KRS 61.872(3), pursuant to which:

A person may inspect the public records:

(a) During the regular office hours of the public agency; or

(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing. (Emphasis added).

In other words, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. Therefore, a requester that both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. Id. As in this case, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5; 04-ORD-011. 5 In construing this provision, the Attorney General has observed:

KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail.

A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific and unequivocal terms the records he wishes to access by mail.

03-ORD-067, p. 5, citing 97-ORD-46, p. 3; 04-ORD-011.

Because the Jailer has not challenged how Mr. Jones' request is framed or cited a statutory basis for denial, relying instead on his transfer to another facility, this office must assume that Mr. Jones' description is "precise," and the records are "readily available. " Regardless of the requester's identity, if he resides or works in a county other than the county where the public records are located, can precisely describe the records he seeks, and those records are readily available, he must be provided with a copy of the records by mail upon prepayment of copying and postage charges. To the extent Mr. Jones can satisfy (or has already satisfied) each of these requirements, he is entitled to receive a copy of any existing record in the custody of the Jailer which is responsive to his request "upon receipt of all fees and the cost of mailing, " in accordance with KRS 61.872(3)(b), unless the Jailer can meet his burden of proof under KRS 61.880(2)(c) by articulating the basis for denying access in terms of one or more of the statutory exceptions codified at KRS 61.878(1)(a) through (n). Pursuant to KRS 61.872(3)(b), the Jailer's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing. " 6 If the Jailer "does not have custody or control" of any records identified in Mr. Jones' request, the Jailer "shall notify [Mr. Jones] and shall furnish the name and location of the official custodian of the agency's public records. " KRS 61.872(4). Until the Jailer performs these functions, his office stands in 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.

Footnotes

Footnotes

1 By letter dated September 17, 2007, Amy Hale Milliken, Warren County Attorney, merely advised that her office "stand[s] behind the information provided by Jailer Strode."

2 Enclosed with Jailer Strode's response is a copy of a handwritten request from Mr. Jones dated August 16, 2007, in which he asks for the following:

1) Accurate records of inmate counts lodged in the Warren County Jail from August 1st-August 15th [sic], 2007. Count sheets .

2) An accurate inventory on the number of mattresses in the Warren County Jail

3) A review of the Warren County Policy & Procedure [M]anual and the State minimum requirements manual.

On the bottom of the request is a typewritten response signed by Jailer Strode, advising that Mr. Jones "was transferred by the Dept. of Corrections on this date back to prison before he could inspect the above or before I responded to his request." While there is clearly a discrepancy between this request and the request attached to Mr. Jones' appeal, this office is unable to resolve such a factual dispute. As consistently recognized by the Attorney General:

This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that [the Jailer has] permitted inspection of some records [Mr. Jones] has asked to inspect, and that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.

03-ORD-061, p. 2, citing OAG 89-81, p. 3. In light of the foregoing, this office declines to make a finding as to any factual issues presented by this appeal.

3 Inaddressing the unique issues associated with accessing public records in this context, the Attorney General has 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. See also 05-ORD-080; 92-ORD-1136; OAG 91-129; OAG 89-86. However, correctional facilities are not authorized to adopt or implement policies or procedures that unreasonably delay access. Id. 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 Act contains a waiver of this requirement for inmates. Accordingly, the Attorney General has previously held that correctional facilities and jails 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. To reiterate, this holding has not been construed to authorize any delay beyond that which is reasonably necessary to ensure prepayment of copying charges. Id.

4 Enclosed with Jailer Strode's response is a copy of Mr. Jones' request dated August 1, 2007, in which he asked for "All books of accounts of all receipts and disbursements from the Canteen that verify the use of Canteen profits/proceeds for the benefit of inmate benefit [sic] and recreation pursuant to KRS 441.135 subsection (2) [sic]." Although Mr. Jones and the Chief Deputy both signed the document, attesting to the fact Mr. Jones was permitted to inspect such records on August 6, 2007, the disposition of that request is not in question.

5 Inaddressing the degree of specificity required, this office has recognized:

An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request does not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978). Instead, the requester should submit "a brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id . Requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records [the requester] wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.

03-ORD-012, p. 3, citing 99-ORD-140, p. 6.

6 If no records exist which areresponsive to portions of Mr. Jones' request, the Jailer must affirmatively indicate as much in writing to Mr. Jones immediately. On this issue, the Attorney General has consistently held:

[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]

02-ORD-144, p. 3; 03-ORD-207. Accordingly, the Jailer must ascertain whether records exist which are responsive to Mr. Jones' request and promptly advise him of the findings - nothing more, nothing less.

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