Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in denying Michael Woodham's request for "one copy of the detainer/warrant lodged against me by the Warrant County Court for Failure to Appear, PFO II, Disorderly Conduct, Alcohol Intoxica[ti]on in [a] Public Place and Promoting Contraband I, Case No. 07-CR-0057." In addition, Mr. Woodham asked that the KSR notify him "ASAP as to the cost of the required document(s)." Although KSR initially misconstrued, and therefore improperly denied Mr. Woodham's request, the KSR remedied this error on appeal. In accordance with prior decisions upholding the validity of Corrections Policy and Procedure 6.1, this office affirms KSR's ultimate disposition of Mr. Woodham's request.
In a timely written response, KSR Offender Information Specialist Marc Abelove denied Mr. Woodham's request because he determined it was "actually request for information." Citing OAG 92-9, Mr. Abelove correctly asserted that the Attorney General "has consistently held that the 'Open Records [Act]' does not require a public agency to compile information or answer questions," but only requires a public agency to "produce documents. . . . which are responsive to a request." Correctly observing that OAG 92-9 does not prohibit a requester from requesting the cost of providing a copy of a requested document(s), and explaining that his request "was merely made so as to prepare a money transfer to cover the cost" of copying, Mr. Woodham initiated this appeal by letter dated July 3, 2008.
Upon receiving notification of Mr. Woodham's appeal from this office, Staff Attorney Leigh K. Meredith, Justice and Public Safety Cabinet, responded on behalf of KSR, initially acknowledging that Mr. Abelove's response "was procedurally deficient because the response noted an incorrect basis for denial[.]" According to Ms. Meredith, KSR's denial was nevertheless correct "because Mr. Woodham failed to submit an inmate authorization form for pre-payment of the copies along with his open records request form pursuant to 501 KAR 6:020, Corrections Policies and Procedures (CPP) 6.1." Citing 05-ORD-228, Ms. Meredith correctly asserts that the Attorney General "has upheld the authority of the Department of Corrections (DOC) to deny an inmate's request, pursuant to CPP 6.1, stating that 'an inmate must accept the necessary consequences of his confinement, including policies relative to requests for public records. '" More specifically, in 06-ORD-030 this office recognized that neither KRS 61.874(1) nor the remainder of the Act contains a waiver of the requirement of "advance payment of the prescribed fee, including postage" for inmates. In "a proper exercise of its discretion," the DOC adopted 501 KAR 6:020, CPP 6.1.VI.B.4, which provides that an inmate must "file an Authorization to Use Inmate Account Form," as further observed by Ms. Meredith.
Relying upon 06-ORD-078 and 06-ORD-030, KSR "contends that Inmate Woodham has the right to obtain copies of his non-exempt records upon submission of all appropriate documentation and pre-payment" of the copying fee. Having reviewed this appeal, Ms. Meredith contacted Mr. Abelove and requested that he notify Mr. Woodham that the cost of the requested copies is $ 0.30; Mr. Abelove did so via institutional mail on July 24, 2008, and informed Mr. Woodham "that he may resubmit his open records request in compliance with 501 KAR 6:020, Corrections Policy and Procedure (CPP) 6.1, as set out above, and include the appropriate inmate authorization form with his open records request, in order to access the records he seeks." Attached to Ms. Meredith's response is a copy of Mr. Abelove's affidavit, which verifies that he did supplement the agency's response in the manner indicated.
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. 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 KSR 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.
In 04-ORD-004, this office expressly upheld the validity of CPP 6.1. More specifically, the Attorney General affirmed the denial by Eastern Kentucky Correctional Complex of the inmate request in question due to the failure of the inmate to provide the inmate identification information required by CPP 6.1, holding that the denial was "proper and consistent with its policies and procedures relating to inmate open records requests," as well as KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 04-ORD-004, p. 3. Although KSR relies upon a separate but related requirement (CPP 6.1 VI.B.4. rather than VI.B.1.), the reasoning 0f 04-ORD-004, a copy of which is attached hereto and incorporated by reference, is equally controlling on the facts presented. 1 See 06-ORD-078; 06-ORD-030; 05-ORD-228. Because the challenged policy "does not interfere, or threaten to interfere, with [Mr. Woodham's] statutory right of access to nonexempt public records, " and is consistent with provisions of the Open Records Act, this office finds no error in the ultimate disposition of his request by KSR. 08-ORD-044, pp. 4-5.
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 More recently, the Attorney General again upheld the challenged policy in a decision affirming a denial by KSR of a request based on the reasoning of 04-ORD-004 and 06-ORD-078; a copy of that decision, 08-ORD-044, is also attached hereto and incorporated by reference.