Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Louisville Metro Department of Corrections violated the Kentucky Open Records Act in denying inmate Jaron Teague's request to inspect various policies of the LMDC and grievances that he filed in 2007, 2008, and 2009. Because any existing policies which are responsive to Mr. Teague's request do not contain a "specific reference" to him, the LMDC properly denied access on the basis of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Pursuant to KRS 61.874(1),
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), and prior decisions of this office, including 08-ORD-044, the LMDC is authorized to require advance payment of a reasonable copying fee of ten cents per page for copies of the requested grievances, which Mr. Teague was already permitted to inspect.
In a timely written response, Communications Director Pam Windsor advised Mr. Teague that his request for "copies of the various policies or procedures documents" was being denied inasmuch as those policies and procedures "do not contain a specific reference" to him, "as provided in KRS 197.025(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l)." Ms. Windsor further advised Mr. Teague that copies of all responsive grievances had "previously been provided" to him, but copies of all grievances filed in 2007, 2008, and 2009 would nevertheless "be made available for [his] inspection. However, due to records of grievances only being maintained on the computer since November 2008, records predating that time [were] currently unavailable." Ms. Windsor explained that a "manual search of the boxes containing inmate grievances by year" would need to be conducted in order to locate grievances filed prior to November 2008. Records generated prior to November 2008, Ms. Windsor indicated, would be made available for inspection on November 6, 2009.
In the event Mr. Teague wished to receive copies after inspection of the grievances, Mr. Windsor advised him as follows:
[Y]ou will be required to have the cost of ten (.10) cents per page available in your inmate account for the copies. If you do not have the available funds in your account, copies of the records will not be provided to you. KRS 61.874(1) provides that a records custodian may require a written request and advance payment of fees for copying. The Open Records Act does not provide for the waiver of reproduction charges for an indigent inmate. 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).
Mr. Teague initiated this appeal by letter dated November 19, 2009.
Upon receiving notification of Mr. Teague's appeal from this office, Assistant Jefferson County Attorney Terri A. Geraghty responded on behalf of the LMDC, initially noting that Mr. Teague's appeal "appears to be related to an open records request that he submitted to LMDC on October 22, 2009." 1 Ms. Geraghty further advised that the LMDC received Mr. Teague's October 22, 2009, request on October 26, 2009. Having reiterated Ms. Windsor's arguments regarding the various policies and procedural documents, Ms. Geraghty confirmed that Mr. Teague was permitted to inspect all of the grievances to which he requested access on or before November 6, 2009, as previously indicated. Pursuant to KRS 61.874(1), the LMDC advised Mr. Teague that he would be required to have available in his inmate account sufficient funds for advance payment of copying fees if he desired to have copies made of any of the documents. Although Mr. Teague referenced in his appeal "the open account for copies doctrine," Ms. Geraghty correctly argued that Friend v. Rees, above, "and numerous Attorney General Opinions [/Decisions] (08-ORD-096; OAG 90-108; 09-ORD-071; 09-ORD-069; 09-ORD-040) would appear to be controlling on the issue of Mr. Teague's responsibility for copying charges." Ms. Geraghty is correct in this assertion.
Consistent with governing precedents, the Attorney General finds that the LMDC properly relied upon KRS 197.025(2) in denying Mr. Teague access to policies which do not contain a "specific reference" to him; likewise, the LMDC was authorized under existing law to require advance payment of a reasonable copying fee of ten cents per page prior to providing Mr. Teague with copies of the requested grievances. In sum, the disposition of Mr. Teague's request is affirmed in its entirety. 2
In our view, the analysis contained in 09-ORD-183 (upholding denial by LMDC of inmate request for various policies on basis of KRS 197.025(2)) is controlling on the first issue presented; a copy of that decision is attached hereto and incorporated by reference. 3 As the Attorney General has consistently recognized, KRS 197.025(2) expressly authorizes correctional facilities under the jurisdiction of the Department of Corrections, whether state or local, 4 to deny a request by an inmate unless the record(s) contains a specific reference to that inmate. Because the records at issue do not contain a specific reference to Mr. Teague, as KRS 197.025(2) requires, he is not entitled to inspect or to receive copies of those records, notwithstanding his underlying concerns. Regardless of the hardship Mr. Teague believes that application of KRS 197.025(2) imposes on the facts presented, he is expressly precluded from gaining access to records which do not contain a specific reference to him by the mandatory language of this provision; accordingly, the LMDC properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying his request. 99-ORD-161, p. 2. To hold otherwise would "defeat the purposes for which KRS 197.025(2) was enacted." 00-ORD-2, p. 1. In light of this determination, the remaining question is whether the LMDC erred in advising Mr. Teague that he was required to have sufficient funds in his inmate account prior to receiving copies of the requested grievances.
On this issue, the analysis contained in 08-ORD-044, a copy of which is attached hereto and incorporated by reference, is equally controlling on the facts presented. As the LMDC has twice asserted, 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 such a policy as "consistent with the Open Records Act and the rule announced in Friend v. Rees, [above]." 97-ORD-131, p. 3. Because the instant appeal presents no reason to depart from governing precedents, the same result necessarily follows; the LMDC did not violate the Act in declining to provide Mr. Teague with copies given his inability to pay the reasonable copying fee. 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.
Jaron S. TeagueMark BoltonTerri A. Geraghty
Footnotes
Footnotes
1 Although Ms. Geraghty also correctly observed that Mr. Teague failed to comply KRS 61.880(2) insofar as he did not provide this office with a copy of his October 22, 2009, request and the agency's October 30, 2009, response, this office mistakenly sent a notification prior to noticing this omission due in part to the volume of documentation received from Mr. Teague. In the interest of efficiency and for the benefit of all concerned, since the LMDC has provided us with a copy of each document and the record is now complete, this office will proceed to an adjudication of this matter.
2 In closing, Ms. Geraghty correctly observed that Mr. Teague attached to his appeal a copy of a "Motion petition amend[ing] original open records requests." Although Mr. Teague's certification indicates that he mailed it on October 13, 2009, Ms. Geraghty further noted that a review of the document reveals that the October certification date is incorrect. According to Ms. Geraghty, the LMDC received the document on November 19, 2009, the date of Mr. Teague's appeal; the LMDC treated his motion as "an original request and provided a written response on November 24, 2009," a copy of which is attached to Ms. Geraghty's response. Insofar as Mr. Teague attempted in the "Motion petition" to "automatically appeal" from the anticipated imposition of copying charges, and the Open Records Act does not contain any provision for an "automatic appeal" to this office, Ms. Geraghty is correct in asserting that Mr. Teague's "automatic appeal of his 'amended request' is premature" and thus cannot properly be considered; however, the LMDC merely required advance payment for copies of the requested medical records in the aforementioned response, as in the response which prompted this appeal.
3 09-ORD-183 is premised on 03-ORD-150 and 09-ORD-157; a copy of each decision is enclosed.
4 03-ORD-150, p. 3 (interpretation of KRS 197.025(2) that does not include jails "is legally unsupportable in light of the underlying purpose of KRS 197.025 taken as a whole")(citation omitted).
5 By letter dated December 9, 2009, and received in this office on December 15, 2009, Mr. Teague replied to Ms. Geraghty's letter, including numerous attachments, the relevance of which is unclear. Inasmuch as the various allegations in his reply are beyond our scope of review, this office respectfully declines to comment.