Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in the disposition of Uriah M. Pasha's February 15, 2011, request for a "copy of any and all disciplinary report(s) charging Uriah Pasha # 92028, with violating Corrections Policies and Procedure[s] Number 15.2 Rule(s), during the months of January and February 2011[,] currently pending or otherwise." In a timely written response, KSR Offender Information Specialist Marc Abelove quoted the language of KRS 61.878(1)(h) and indicated that "a write[-]up dated 01/29/11 is still under investigation as of this date 2/17/[11] and is therefore denied." Mr. Abelove further advised that "[t]here was a write-up that was dismissed on 01/25/11" and instructed Mr. Pasha to "please resubmit another request" if he wanted a copy. Mr. Pasha initiated this appeal shortly thereafter, quoting Mr. Abelove's response, but seemingly focusing on the denial relative to the January 29, 2011, write-up to which KSR denied access on the basis of KRS 61.878(1)(h). Because that disciplinary action is no longer pending, the disciplinary report has been dismissed; accordingly, KSR has now agreed to provide Mr. Pasha with a copy upon receipt of a completed money authorization form per Department of Corrections Policies and Procedures (CPP) 6.1(B)(4). KSR has further agreed to provide Mr. Pasha with a copy of the dismissed write-up dated January 25, 2011, assuming that he deems it responsive, upon his compliance with CPP 6.1. Based upon the following, this office affirms the agency's final disposition of Mr. Pasha's request.
Upon receiving notification of Mr. Pasha's appeal from this office, Amy V. Barker, Assistant General Counsel for the Justice and Public Safety Cabinet, responded on behalf of KSR, in relevant part, as follows:
It is not clear whether Mr. Pasha is taking issue with the response concerning the dismissed report. He quotes the response concerning it, but does not raise any issues about it in his appeal. Inmates often are not seeking dismissed disciplinary reports when they make a request for all disciplinary reports during a specified time frame. In an effort not to charge for unwanted copies, KSR asked Mr. Pasha to state that he wanted the dismissed report by sending another request. This was done because a money authorization would be needed to provide the copies of the dismissed report since the one provided with the request was sent back with the response as is normally done when documents are not provided. In this way the inmate knows that his account was not charged for any copies.
KSR has reviewed its response for the pending write-up dated 1/29/11. At the time the response was made, the disciplinary action was still pending. The disciplinary report has been dismissed and Mr. Pasha may obtain a copy of it by providing the necessary money authorization to obtain it. KSR will provide a copy to Mr. Pasha when the money authorization to pay for the copy from his account is received.
Although KSR failed to satisfy its burden of proof relative to KRS 61.878(1)(h) in quoting the language of the exception without explaining how it applied to the record(s) withheld, further discussion of that issue has become unwarranted as the agency is no longer denying access. See 40 KAR 1:030, Section 6. In addition, KSR arguably construed Mr. Pasha's request too narrowly in excluding the dismissed report given that he requested any and all disciplinary reports for the specified time period, "pending or otherwise," which resulted in the return of his completed money authorization; 1 however, the record on appeal is devoid of any evidence to suggest KSR acted in bad faith. KSR was attempting to avoid charging Mr. Pasha for unwanted copies, a reasonable approach when viewed in context. In any event, KSR has agreed to provide Mr. Pasha with a copy of this record upon receipt of a completed money authorization thereby rendering further discussion of any related issues unwarranted. 2 The Attorney General finds no error in KSR's ultimate disposition of Mr. Pasha's request as the agency is merely requiring compliance with a relevant section(s) of CPP 6.1, the validity of which has previously been established.
In addressing the unique issues surrounding access to public records in this context, the Attorney General has long 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 KSR 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 and 08-ORD-242, this office specifically upheld the provision of CPP 6.1 implicated here ((B)(4)); accordingly, the reasoning of those decisions is controlling. A copy of each decision is attached hereto and incorporated by reference. See 09-ORD-200; 08-ORD-157; 06-ORD-078; 06-ORD-030; 05-ORD-228. Inasmuch as the challenged policy "does not interfere, or threaten to interfere, with [Mr. Pasha's] statutory right of access to nonexempt public records, " and is consistent with provisions of the Open Records Act, this office finds that KSR did not violate the Act by requiring compliance with it and trusts that any remaining issues will be resolved when KSR provides Mr. Pasha with the requested copies upon receipt of the necessary documentation. 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.
Distributed to:
Uriah M. Pasha, # 92028Marc AbeloveAmy V. Barker
Footnotes
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