Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Lexington-Fayette Urban County Government, Division of Community Corrections violated the Kentucky Open Records Act in conditioning inmate John M. Price, Jr.'s right to receive a copy of his "Intake Records," his "Classifications record of assignment to Unit JJ," the incident report from when he allegedly "fell from a top bunk (01-01-09)," and his medical records, including x-ray negatives, on his ability to pay the associated copying fee in advance. Upon receiving notification of Mr. Price's appeal from this office, Keith Horn, Attorney Sr., defended the Division's position, correctly asserting that the Open Records Act "does not require that copies of records be provided to a requester free of charge." In fact, Mr. Horn observes, "KRS 61.872(3) and KRS 61.874(1) provide that copies may be obtained 'upon receipt of all fees' and after 'advance payment of the prescribed fee,' respectively. This does not change because the person requesting the records is an inmate. " Relying upon
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), and prior decisions of this office, including OAG 91-210 and 08-ORD-044, Mr. Horn argues that Mr. Price's situation is "no different" and the agency's response to him was therefore correct. Because this appeal presents no reason to depart from governing precedents, the denial is affirmed.
In our view, the reasoning contained in 99-ORD-30 (pp. 4-5) and 08-ORD-044 (pp. 3-6) is equally applicable on the facts presented; a copy of each decision is attached hereto and incorporated by reference. As the Division correctly argues on appeal, the courts and this office have both specifically 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. " Id. at 326. 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, " the Attorney General 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. Inasmuch as the Open Records Act does not contain a waiver of the requirements codified at KRS 61.872(3)(b) and 61.874(1) for indigent inmates, the Division did not violate the Open Records Act in denying Mr. Price'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.
Distributed to:
John M. Price, Jr.Todd W. EadsLogan AskewKeith Horn