Request By:
Marcus McStoots
Tom Campbell
William P. O'Brien
Suzanne D. Cordery
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 Louisville Metro Department of Corrections violated the Kentucky Open Records Act in the disposition of Marcus McStoots' request for a copy of "Record Series L2750 pursuant to Marcus McStoots SSN . . . for the time period September 1, 2005 through July 1, 2007." Because Mr. McStoots failed to precisely describe the records being sought, as required by KRS 61.872(3)(b), the LMDC did not violate the Open Records Act in denying Mr. McStoots' request for the agency to mail a copy of same to him. In accordance with
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), and prior decisions of the Attorney General, this office finds that insofar as the LMDC adopted a blanket policy of charging a $ 3.00 fee to provide "arrest history information," the volume of which presumably varies by inmate, the LMDC subverted the intent of the Act within the meaning of KRS 61.880(4); the record is devoid of evidence or authority to support imposition of a fee which exceeds the actual cost of reproduction.
In response to Mr. McStoots' request, an unidentified individual provided Mr. McStoots with a document which reads, in relevant part, as follows:
Effective Oct. 1, 2007 the Louisville Metro Department of Corrections will charge a $ 3.00 fee for arrest history information. Individuals requesting an arrest history will need to complete the attached form and enclose the $ 3.00 fee plus a self[-]addressed stamped envelope.
Acceptable methods of payment are money orders, cash, institutional or commercial checks only. No personal checks will be accepted.
Louisville Metro Department of Corrections
Records Division
400 S. 6th Street
Louisville, Ky. 40202
By letter dated November 19, 2007, Mr. McStoots initiated this appeal challenging the "refusal of the Official Custodian of Records" at LMDC to forward him "photocopies of records in [its] possession"; Mr. McStoots also identified Record Series L2750 as "Inmate Medical Records" for the first time.
Upon receiving notification of Mr. McStoots' appeal from this office, Assistant Jefferson County Attorney Suzanne D. Cordery responded on behalf of the LMDC. More specifically, Ms. Cordery correctly observes that the Open Records Act "requires an applicant to describe what records he or she seeks to inspect or have copied. KRS 61.872(3)(b) requires the applicant to 'precisely describe' the public records for which copies are requested, and copies shall be mailed only upon receipt of all fees and the cost of mailing. " In her view, the request "does not specifically describe the record that the applicant desired to receive." Further, the LMDC "did not deny or grant the request; instead, the Department advised the applicant of the cost of obtaining a records check." Because the LMDC was unable to "identify what documents the applicant[] wish[es] to see" or "forecast what [its] actual burden will be" in fulfilling the request, Department of Corrections v. Chestnut , Ky. App., 2004-CA-1497-MR (2005), 1 this office must affirm its disposition of Mr. McStoots' request.
To begin, the LMDC's response is not properly characterized as a denial in the conventional sense although "arrest history information" presumably does not encompass nor can it be equated to an Inmate Medical Folder. 2 Nevertheless, the apparent misinterpretation of Mr. McStoots' request by the LMDC illustrates the lack of precision; a Record Series Number without further explanation is not a precise description of records in our view. As consistently recognized by this office, KRS 61.872 governs access to public records. Pursuant to KRS 61.872(3):
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. 3 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. On the other hand, 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. 4 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. Unless and until Mr. McStoots describes the record(s) being sought with the requisite specificity, the LMDC cannot be expected to honor his request.
In addressing the unique issues surrounding access to public records in this context, the Attorney General has consistently 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 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 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 the 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, 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. 03-ORD-152, p. 2. In the same vein, an agency is not required to furnish the record to a third party. Id. Accordingly, the more demanding standard applies here.
By virtue of his confinement at Little Sandy Correctional Complex, Mr. McStoots is foreclosed from exercising his right to inspect any records which are potentially responsive to his request during the regular hours of the LMDC in accordance with KRS 61.872(3)(a). That being the case, Mr. McStoots must "precisely describe" the records "which he wishes to access by mail. " As in 99-ORD-63, 01-ORD-185, 03-ORD-195, 05-ORD-152, and 06-ORD-155, the requester has failed to satisfy the requirements of KRS 61.872(3)(b). Because the records have not been precisely described, the records cannot accurately be characterized as "readily available" within the LMDC; this "relieves the [LMDC] of the duty to conduct a search for responsive records which may or may not exist," but which are clearly not "readily available within the public agency. " 03-ORD-067, p. 6; 04-ORD-011. That being said, the limited evidence of record suggests the LMDC has subverted the intent of the Open Records Act, short of denial of inspection, to the extent it has adopted a policy of imposing a flat fee of $ 3.00 for providing records containing arrest history information rather than basing the fee on the actual cost of reproduction each time.
On this issue, 01-ORD-136, a copy of which is attached hereto and incorporated by reference, is controlling. Unless the LMDC can substantiate that its actual costs exceed ten cents per page, it must recalculate its copying fee to conform to the requirements of KRS 61.874(3) as construed in 01-ORD-136 and the authorities upon which that decision is premised. Because the record on appeal is devoid of evidence to justify a charge of $ 3.00 for "arrest history information, this office must conclude that $ 3.00 is an excessive fee, the imposition of which constitutes a subversion of the intent of the Act within the meaning of KRS 61.880(4); existing legal authority does not support the current policy of the LMDC.
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 Although Department of Corrections v. Chestnut is an unpublished opinion which, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any other case in any court of the state, Chestnut is presumably indicative of the view which the courts might ultimately adopt in a published opinion addressing the degree of specificity required in formulating a request under the Open Records Act. A petition for discretionary review was granted in this case on May 10, 2006 (2006-SC-000086).
2 An Inmate Medical Folder, identified at Series No. L2750 of the Jailer Records Retention Schedule, developed by the Kentucky State Archives and Records Commission pursuant to KRS 171.530 and promulgated into regulation at 725 KAR 1:061, may include "Certifications of Qualified Mental Health Professionals, Verified Petition for Involuntary Hospitalizations, Medical Log Sheets, Authorization for Release of Medical Information, Medical Request." It should only be destroyed 10 years after release of the inmate. Accordingly, the LMDC should be in possession of Mr. McStoots' medical folder given the specified time frame of September 1, 2005, through July 1, 2007, and should make any nonexempt portions available to him upon receipt of a precise request and prepayment of all fees and the cost of mailing. A copy of the Records Retention Schedule is attached.
3 At issue in 03-ORD-067 was whether the Jefferson County Clerk had subverted the intent of the Act in his disposition of a request for the name and zip code associated with a specified address. In finding no substantive violation, this office observed that a county clerk's office "is equipped to readily locate a deed if a precise description, namely deed book and page number, is provided." Id., p. 5. Likewise, the LMDC is equipped to locate records which are responsive to Mr. McStoots' request upon receiving clarification as to which of the potentially responsive documents are being requested assuming such records exist. When a requester provides the clerk (or records custodian) with a sufficiently detailed description, "the clerk [custodian] is required to mail [the requester] a copy of the deed [specified records] upon prepayment of reasonable copying charges not to exceed ten cents per page and postage charges." Id. However, if the requester (Mr. McStoots) is unable to provide the requisite identifying information, it is not incumbent on the clerk (or records custodian) "to make extraordinary efforts to identify, locate and retrieve the records in order to copy and mail [the records] to the [requester] ." Id., p. 5 (citation omitted).
4 In addressing 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. Because Mr. McStoots failed to satisfy this precondition to inspection, the burden of proof never shifted to the LMDC.