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 Penitentiary violated the Kentucky Open Records Act in the disposition of Gerald Morris' October 3, 2008, request for a copy of his "Resident Record Card or order authorizing my housing here [KSP]" and his October 6, 2008, request for a copy of the first page of his Resident Record Card, "or whatever official document KSP is using to currently detain Gerald Morris #101185 at the Kentucky State Penitentiary, Rt. 2, P.O. Box 5128, Eddyville, Ky. 42038." In accordance with prior decisions affirming the validity of Corrections Policies and Procedures 6.1, including 05-ORD-228 and 04-ORD-004, this office affirms the agency's disposition of both requests. Because KSP cannot provide for inspection or copying a nonexistent record, but has agreed to provide Mr. Morris with a copy of the only responsive documents in the possession of the agency upon his completion of a "request to inspect records form with a properly completed money authorization form," a requirement which is consistent with KRS 197.025(1) and 61.874(1), no violation occurred under
Department of Corrections v. Chestnut, Ky., 250 S.W.3d 655 (2008).
In a memorandum dated October 9, 2008, Offender Information Specialist Angela Thomas denied Mr. Morris' initial request because he "did not submit a CPO with" his request. More specifically, Ms. Thomas advised that "CPP 6.1, Section B-4, authorizes the requirement of sending a properly signed and verified Cash Paid Out (CPO), with the open records request. Submit a new request with a COP attached." (Original emphasis.) Upon receipt of Mr. Morris' October 6 request, Ms. Thomas reiterated that CPP 6.1, Section B-4 requires that inmates provide a "properly signed Cash Paid Out (CPO) with the open records request." (Original emphasis.) In addition, Ms. Thomas advised that pursuant to "KSP IPP 02-12-02 page 2 section D number 1 [sic], the inmate's signature on the CPO must be verified by a designated staff member." (Original emphasis.) Because Mr. Morris' CPO was not properly verified, his request was again denied. Attached to Ms. Thomas' memorandum is a copy of the memorandum directed to "Inmate Population" from Deputy Warden Alan Brown on November 20, 2007, wherein the staff members who are designated to verify CPOs for inmates are listed.
By letter dated October 10, 2008, Mr. Morris initiated this appeal from the denial of his requests. Upon receiving notification of Mr. Morris' appeal from this office, Assistant General Counsel Amy V. Barker, Department of Corrections, responded on behalf of KSP, initially observing that in addition to omitting a properly verified CPO, Mr. Morris "failed to comply with other requirements of CPP 6.1, including using the Request to Inspect Public Records form, sending the request to the coordinator through institutional mail, and including all required information. (CPP 6.1 incorporated by reference in 501 KAR 6:020, see 06-ORD-030, 04-ORD-004.)" Citing KRS 61.874(1), Ms. Barker correctly notes that a records custodian is authorized to require advance payment of copying fees "and that is what KSP did in its response."
With regard to KSP's reliance on KSP IPP 02-12-02, Ms. Barker notes that said institutional policy "is used in conjunction with CPP 6.1." According to Ms. Barker:
The requirement of a staff verification of the inmate signature prevents attempts to deduct unauthorized amounts from inmate accounts through forgery, which has happened at the institution in the past. It also prevents an inmate from obtaining records and then claiming that he did not make the request for the records, which saves staff time and institutional expense. It is a simple verification process at the institution since inmates cannot provide cash for the records given their incarceration. The form submitted by Mr. Morris did not have the required staff verification. This requirement assists the orderly functioning and control of the institution and is not onerous since unit staff authorized to verify the inmate signature is readily available in the inmate's housing unit. . . . An inmate in a correctional institution who makes an open records request is "uniquely situated." See 06-ORD-030 at 4, 95-ORD-105. The Attorney General's office has recognized that the Department of Corrections is vested with broad discretion in matters related to the safety, security, and operation of its institutions. See 04-ORD-004 at 3. The opinions accepting the requirements of CPP 6.1 apply equally to this institutional policy. It is a method of ensuring prepayment in a prison setting without subterfuge and to alleviate control issues because of funds being misappropriated from another inmate account.
Mr. Morris is a pretrial detainee being housed under contract for McCracken County. Since Mr. Morris is a pretrial detainee, no current resident record card exists for him. These are created after an inmate is committed to the Department of Corrections, which has not occurred for Mr. Morris at this time on his pending criminal case.
That being said, Ms. Barker advises that KSP has "a contract consisting of two pages that would comply with the request made by Mr. Morris." Citing KRS 61.874(1), Ms. Barker observes that Mr. Morris may obtain a copy of the contract "by sending a request to inspect records form with a properly completed money authorization form (CPO) to the Offender Information Office at the Kentucky State Penitentiary." See 08-ORD-241 (affirming the Department of Corrections' imposition of copying fees and postage as a precondition to release of the responsive contract).
As the Attorney General has often recognized, a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess. 1 Having affirmatively indicated that no resident record card exists for Mr. Morris, offered a credible explanation for the nonexistence of same, and ultimately agreed to provide him a copy of the only responsive document(s) upon his compliance with applicable DOC and institution policies, KSP has discharged its duty. Inasmuch as the position of KSP relative to KSP IPP 02-12-02 is but a logical extension of the reasoning set forth in prior decisions upholding the validity of CPP 6.1, and the policy has a legitimate statutory basis rather than purporting to "add a requirement not found in the statutes," the disposition of Mr. Morris' request(s) is affirmed consistent with
Department of Corrections v. Chestnut, Ky., 250 S.W.3d 655, 662 (2008).
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, and the manner in which he conducts his financial business dictated by the facility. . . . 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 (emphasis added). 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 require prepayment of copying fees, and enforce standard policies regarding assessment of charges against inmate accounts, despite the delay in processing the request which might inevitably result; however, this holding has not been construed to permit a delay beyond that which is reasonably necessary to ensure prepayment of copying charges. 95-ORD-105, p. 3. Here, no unreasonable delay resulted from enforcing the requirement of signature verification, which is merely incidental to application of KRS 61.874(1) and exists for entirely legitimate reasons given the unique considerations of a correctional setting.
In 04-ORD-004, this office expressly upheld the validity of CPP 6.1, incorporated by reference at 501 KAR 6:020. 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), 2 incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 04-ORD-004, p. 3. Similarly, in 05-ORD-228 this office upheld a separate but related procedural requirement of CPP 6.1, providing that inmates must submit requests via institutional mail to the Open Records Coordinator, based on KRS 197.025(1), 3 KRS 197.025(4), 4 and the reasoning of 04-ORD-004.
More recently, the Kentucky Supreme Court rejected the Department of Corrections' reliance on a section of CPP 6.1 that did not correspond to any provision of the Open Records Act.
Department of Corrections v. Chestnut, Ky., 250 S.W.3d 655 (2008). In so doing, the Court held that the administrative regulation "provides no relief to the DOC . . . because it purports to add a requirement not found in the statutes," and the DOC "'cannot by its rules or regulations, amend, alter, enlarge or limit the terms of the legislative enactment.'" Id. at 662, citing
Camera Center, Inc. v. Revenue Cabinet, Ky., 34 S.W.3d 39, 41 (2000) and
Brown v. Jefferson County Police Merit Board, Ky., 715 S.W.2d 23 (1988). Insofar as the procedural requirement upon which KSP relies, found at Section I.D.1. of KSP IPP 02-12-02, was imposed to protect both inmates and the correctional facility as explained by Ms. Barker, it represents a legitimate exercise of the broad discretion granted to the DOC by KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). To this extent, KSP IPP 02-12-02 corresponds to a statutory enactment, rather than purporting to impermissibly add a requirement, and in conjunction with corresponding sections of CPP 6.1, provides a legitimate basis for denying Mr. Morris' request in the unique setting of a correctional facility. See 08-ORD-224.
In our view, the reasoning contained in 05-ORD-228 and 04-ORD-004, to the extent applicable, remains controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. 5 See also 06-ORD-078; 06-ORD-030. Because the challenged policy "does not interfere, or threaten to interfere, with [Mr. Morris'] statutory right of access to nonexempt public records, " but corresponds to KRS 197.025(1) , and provisions of the Open Records Act such as KRS 61.874(1), the denial of his request(s) is consistent with Chestnut and is therefore affirmed. 08-ORD-044, pp. 4-5. As in 08-ORD-224, this office encourages KSP, "along with all other jails and state and private facilities operating under CPP 6.1 to bear in mind the Court's holding in Chestnut in responding to future open records requests." Id., p. 2.
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 With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records generally, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling.
2 KRS 197.025(2) provides:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
3 KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
4 KRS 197.025(4) provides:
KRS 61.872 to the contrary notwithstanding, the Department of Corrections shall refuse to accept the hand delivery of an open records request from a confined inmate.
5 More recently, the Attorney General again upheld the challenged policy in a decision affirming a denial by the Kentucky State Reformatory 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.