Request By:
William Mask, # 199488
Pamela Cantrell
Leigh Meredith
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in denying William Mask's request for copies of his medical records from January 2007-present because his inmate account "does not contain sufficient funds to cover the copying fee" and the Department of Corrections "is not required to provide copies not [sic] even to indigent inmates" under those circumstances per KRS 61.874. Because the Open Records Act does not contain a waiver of the requirements codified at KRS 61.874(1) for indigent requesters, this office affirms the disposition of Mr. Mask's request in accordance with governing authorities.
Noting that he needs the requested medical records for his "personal record, for a lawyer when" he's released, Mr. Marks initiated this appeal by letter April 10, 2008. Upon receiving notification of Mr. Marks' appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of EKCC, correctly observing that KRS 61.874(1) authorizes a records custodian to "require a written request and advance payment of fees for copying, and if applicable, postage. The Open Records Act does not provide for the waiver of reproduction charges for the indigent. " Citing OAG 91-210, in which this office followed Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), Ms. Dennis also notes the Attorney General has recognized that, "if an inmate requests copies and his inmate account does not contain sufficient funds to cover the copying fee, a public agency is not required to provide copies (even to indigent inmates) ."
In addition, Ms. Dennis advises that under KRS 422.317(2) "the Department of Corrections is not considered a health care provider and is therefore exempt from providing free copies of medical records. Until such time as Mr. Mask has funds available to pay for copies of records, he may request to inspect his medical records, if he has not already done so." To the extent that Mr. Mask is dissatisfied with his medical care, Ms. Dennis further explains that Corrections Policy & Procedure (CPP) 14.6, a copy of which is attached to her written response, contains the "medical grievance procedure that he may utilize to make his complaint." Based upon the foregoing, Ms. Dennis argues that EKCC properly denied Mr. Mask's request; governing precedent validates her position.
In our view, the reasoning contained in 08-ORD-044, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. As correctly argued by EKCC on appeal, the courts and this office have both recognized the propriety of a DOC policy requiring advance payment of copying fees. In Friend v. Rees , above, for example, the Kentucky Court of Appeals held that an inmate is entitled to receive a copy of a record only after "complying with the reasonable charge of reproduction. " Accordingly, the Attorney General subsequently determined that it is "entirely proper for [a correctional] facility to require prepayment and to enforce its standard policy relative to assessment of charges to inmate accounts . . . ." 95-ORD-105, p. 3. While acknowledging "this prepayment policy might work a hardship on inmates, " this office has nevertheless upheld the policy as "consistent with the Open Records Act and the rule announced in Friend v. Rees , [above]." 97-ORD-131, p. 3. Because the instant appeal presents no reason to depart from governing precedents, the same result necessarily follows; EKCC did not violate the Open Records Act in denying Mr. Mask's request given his inability to pay for the requested copies.
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.