Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northpoint Training Center violated the Kentucky Open Records Act in denying Willie J. Stewart's written request for a copy of check number CK0058169 and "any C.P.O. or Court Order authorizing a [check] to be sent" from his inmate account, and his request for a copy of "any and all documentation of [the 'mentally ill' ] diagnosis and prognosis" referenced on his latest Resident Record Card because his inmate account does not contain sufficient funds to pay the associated reproduction charges. Because the Open Records Act does not contain a waiver of the requirements codified at KRS 61.874(1) for indigent requesters, contrary to Mr. Stewart's assertion, this office affirms the disposition of his request in accordance with governing authorities.
In a timely written response dated March 18, 2009, Donna Lamb, Office Support Assistant, advised Mr. Stewart that she was forwarding "a copy of the check stub, receipt by Court, and the Court Order directing payment" to CTO Jann Edington for his inspection. Ms. Lamb further noted that NTC "does not have a copy of the actual check" as it "does not retain copies of checks that are issued." 1 In a separate letter of the same date, Ms. Lamb addressed Mr. Stewart's other written request, explaining that "Mentally Ill" appears on his Resident Record Card as "a result of a change in computer systems. . . . Inmates that have transferred from the old system to the new system have this on their resident record card. All the words in capital letters in this area of the record card represent all of the options in the old system. You can contact your CTO to clarify this further if necessary." With regard to receiving copies, Ms. Lamb responded as follows in both instances:
After checking your account balance it seems you do not have enough money in your account to pay for the copy you have requested. Your account balance is $ .08. The requested copies will cost 10 cents per page.
KRS 61.874(1) states in part, "When copies are requested, the custodian may require a written request and advance payment of the prescribed fee."
CPP 6.1 (VI)(B)(4)(a)(b) states "If the inmate does not have sufficient funds for payment of the fee, he may request the opportunity to inspect the record, or he may re-file his request upon receipt of sufficient funds to cover payment of the fee."
Therefore I am denying your request for copies. However, per KRS 61.872(1) you have the right to inspect any records that are not closed by statute.
Because the position of NTC is entirely supported by prior decisions applying KRS 61.872(1) and upholding the validity of the relevant section(s) of CPP 6.1, this office finds no error in the agency's disposition of Mr. Stewart's requests.
Upon receiving notification of Mr. Stewart's appeal from this office, Amy Barker, Assistant General Counsel, Department of Corrections, responded on behalf of NTC. As Ms. Barker correctly observed:
Ms. Lamb correctly denied the requested free copies [of records pertaining to his alleged mental illness] and gave Mr. Stewart an option to inspect his records in Medical Services if he desired.
Under the Open Records Act an indigent inmate is not entitled to free copies. KRS 61.874(1) provides that a records custodian may 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. In addition, the Attorney General has held 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. See 08-ORD-096, 08-ORD-044, OAG 91-210, following Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985).
. . . [NTC] did not have a copy of the check and it could not be provided for inspection. Mr. Stewart asserts that he is entitled to a free copy of any record that contains a specific reference to him that is held by [DOC]. For the reasons stated above, Mr. Stewart is not entitled to free copies pursuant to the Open Records Act. The amount of his account balance is irrelevant when he did not follow CPP 6.1 to authorize a deduction from his account, but instead requested free copies. . . . Mr. Stewart refers to the Freedom of Information Act in his appeal letter. The Attorney General has stated, "[The Freedom of Information Act] has no force as to state records, only the records of [a] federal agency." 96-ORD-244, citing OAG 91-56. . . . Citing to the Federal Act does not entitle Mr. [Stewart] to the records that he seeks.
In closing, Ms. Barker also notes that Mr. Stewart's appeal raises "various other arguments concerning policies and the requirements of state[] and federal courts that do not pertain to the Open Records Act. " Citing 08-ORD-142, she correctly argues that this office has acknowledged that such issues are beyond the scope of an Open Records appeal and cannot be resolved in this forum. Inasmuch as NTC agreed to provide Mr. Stewart with an opportunity to inspect all existing records in the custody of the agency which are responsive to his requests, and only declined to provide him with free copies of those records, NTC did not violate the Open Records Act.
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 NTC 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. This appeal presents no reason to depart from governing precedents; accordingly, this office finds that NTC did not violate the Open Records Act in declining to provide Mr. Stewart with copies of the records in dispute given his inability to pay for the requested copies in advance. See 09-ORD-069.
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.
Willie J. Stewart, # 093596Jennifer MaryeDonna LambAmy V. Barker
Footnotes
Footnotes
1 Public agencies cannot produce for inspection or copying nonexistent records nor do public agencies have to "prove a negative" in order to refute a claim that certain records do exist under the rule announced in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005). See 07-ORD-190; 07-ORD-188.