09-ORD-097 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General

Open Records Decision

This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that although Western Kentucky Correctional Complex initially erred in refusing to honor inmate Gregory Valentine's request to inspect his account records until he "sign[ed] a CPO for 7 pages of copies," 1 WKCC subsequently acknowledged its error and permitted the inmate to inspect his file. It is the decision of this office that 08-ORD-141, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. At page 3 of that decision, the Attorney General held that "[i]n the absence of any assertion that [the inmate] is foreclosed from conducting inspection by virtue of the circumstances of his confinement, [the facility] erred in denying [the inmate's] request to inspect [particular records] on the basis of his inability to pay [or, in this case, to prospectively authorize payment] for copies." Here, as in the referenced decision, the facility "recognized its error, . . . [and] moved to correct it by affording [the requester] access to the [requested records]," thereby mitigating its error.

Unlike the inmate requester in 08-ORD-141, Mr. Valentine refused to attest to his inspection of the requested records by affixing his signature to a written acknowledgement, noting that the records he inspected "may or may not represent all records responsive to the request at issue," and that "some of the records were not related to the request." Given these vague assertions, "this office cannot . . . adjudicate a dispute regarding the disparity, if any, between records for which inspection has already been permitted and those sought but not provided," as well as those provided but not sought. OAG 89-81, p. 3. Absent a prima facie showing that additional records exist that are responsive to his request, as required by the

Kentucky Supreme Court in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), WKCC is not required to "prove a negative" in order to refute Mr. Valentine's claim that additional records exist.

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:

Gregory Valentine, #163775 D1 48Klaytor BurdenAmy V. Barker

Footnotes

Footnotes

1 To its credit, WKCC provided the requester with a narrative summary of his inmate account pending receipt of a CPO authorizing the release of funds for copying fees.

LLM Summary

The Attorney General's decision addresses an open records appeal involving an inmate's request to inspect his account records. Initially, the facility erred by requiring the inmate to sign for copies before allowing inspection. However, the facility recognized and corrected this error by allowing the inmate to inspect his records. The decision follows the precedent set in 08-ORD-141, which dealt with a similar issue of denying access based on an inmate's inability to pay for copies. Additionally, the decision cites OAG 89-81 to clarify that without evidence of additional responsive records, the facility is not obligated to prove the non-existence of such records.

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