Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Marion Adjustment Center violated the Kentucky Open Records Act in the disposition of inmate Eric Cunningham's written request for his "'sentence credits/debits,'" "any and all information" regarding his DVO (Domestic Violence Order), "proof of [his] caseworker Shirley's application for meritorious good time" from January 2005-November 2005 and June 2, 2009-present, "and restoration of 30 days GTL." In a timely written response, MAC advised Mr. Cunningham that his request was "incomplete" because he needed to submit an "Accounts Authorization w/ approving signatures." Mr. Cunningham subsequently initiated this appeal, contending that MAC violated KRS 61.874(1) "by failing to provide the cost of such records." In accordance with prior decisions upholding the validity of Corrections Policy and Procedure 6.1, this office affirms the agency's ultimate disposition of Mr. Cunningham's request. Although MAC erred in failing to specify the policy upon which it relied in requiring Mr. Cunningham to complete a "Release of Funds Authorization" form prior to processing his request, MAC otherwise complied with the Open Records Act.
Upon receiving notification of Mr. Cunningham's appeal from this office, Assistant Warden/Open Records Coordinator Daniel Akers responded on behalf of MAC. According to Mr. Akers, MAC "has in no way denied inmate Cunningham's request, as it was not accepted initially and was sent back for the inmate to correctly submit his request." All requests under the Open Records Act, Mr. Akers explained, "are to be submitted to the Open Records Coordinator [him], on the appropriate forms prior to being accepted and dated [sic] stamped for processing. Inmate accounts must be verified initially as there are 'no free copies' in the Open Records Request process."
Mr. Akers further observed that it is "the inmate's responsibility to ensure he properly utilizes processes in place and utilize the assistance of his assigned case manager. " Requests "must be filed completely and correctly before being accepted. Had inmate Cunningham acquired assistance of his case manager and properly resubmitted his request, it would have been accepted and processed accordingly." Thus, Mr. Akers concluded that Mr. Cunningham's assertion relative to KRS 61.874(1) was unfounded. Attached to Mr. Aker's response was a copy of the required Form 6-1D, "Request to Inspect Public Records, " 1 and the "Release of Funds Authorization" form. In closing, Mr. Akers advised that Mr. Cunningham "may resubmit a complete and correct request so it can be processed within the mandates of policy and procedure." However, Mr. Cunningham "has since been transferred to Eastern Kentucky Correctional Complex and will need to submit all requests for records to the Coordinator at that facility." In response to a verbal inquiry from the undersigned counsel regarding which policy(ies) MAC had relied upon, Mr. Akers clarified that "MAC's Open Records policy is [the Kentucky Department of Corrections' CPP 6.1] w/ the addition of [Corrections Corporation of America's] form 6-1D." Additionally, Mr. Akers emphasized that "all polic[ies] and procedures used at [MAC] have been reviewed and approved by [the DOC]." Although DOC approval is not dispositive standing alone, prior decisions upholding the relevant policies of the DOC are.
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 like MAC are permitted to 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. 95-ORD-105, p. 3. However, this holding has not been construed to authorize any type of 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. Likewise, in 08-ORD-044, a copy of which is attached hereto and incorporated by reference, this office specifically upheld the provision of CPP 6.1 implicated here (VI.B.4); accordingly, the reasoning of that decision is controlling. 2 See 06-ORD-078; 06-ORD-030; 05-ORD-228. Because the challenged policy "does not interfere, or threaten to interfere, with [Mr. Cunningham'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 MAC. 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.
Eric Cunningham, # 151116Cole CarterAmy V. BarkerDaniel Akers
Footnotes
Footnotes
1 It appears that the only differences between the "Form 6-1D" and the standard DOC form are that the former contains a place for the requester to check a box specifying whether he is asking to "inspect" or to receive a "Copy(ies)" and it also has a designated space for the facility to mark the request as "Date Stamp Received." Both of these differences are designed to ensure that requests are processed correctly and efficiently, which is entirely consistent with provisions of the Open Records Act; this office therefore has no basis to depart from the reasoning found in prior decisions upholding CPP 6.1.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 In 08-ORD-050, the Attorney General again upheld the challenged policy (CPP 6.1) in a decision affirming a denial of a request by MAC based on the reasoning of prior decisions; a copy of 08-ORD-050 is attached hereto and incorporated by reference.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -