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 the Louisville-Jefferson County Public Defender Corporation did not violate the Open Records Act in the disposition of inmate Russell G. Milburn's December 26, 2012, request to inspect his criminal case file. Nor did the Public Defender subvert the intent of the Act by imposing a ten cents per page copying fee before mailing Mr. Milburn a copy of the file. Mr. Milburn elected to proceed under the Open Records Act, and resolution of each of the issues he raises on appeal is governed by 12-ORD-082 and 99-ORD-30, respectively.
The Public Defender agreed to provide Mr. Milburn with a copy of his 420 page file upon receipt of a $ 42.00 money order or cashier's check, explaining that "10 [cents] per page represents reasonable copying costs." In addition, the Public Defender suggested alternative offices from which Mr. Milburn might obtain the requested records. Dissatisfied with this response, Mr. Milburn submitted an appeal to this office in which he complained that he "cannot afford to copy the file sight unseen."
In supplemental correspondence directed to this office, the Public Defender extended an invitation to Mr. Milburn to conduct an on-site inspection of his criminal case file, or to designate a representative to do so, but expressed the belief that neither the Act itself nor judicial interpretation of the Act requires the agency "to travel to Kentucky State Reformatory to accommodate Mr. Milburn." Continuing, the Public Defender indicated that Mr. Milburn's former staff attorney provided him with documents from his case file on five occasions in the period from March 2009 to December 28, 2012, and that the agency offered to provide him with a copy of the entire file at a cost of ten cents per page on three occasions prior to the occasion that precipitated this appeal. We agree with the Public Defender that the Open Records Act requires the agency to do no more until Mr. Milburn prepays for copies or designates a representative to conduct an on-site inspection of his criminal case file.
In 12-ORD-082, the Attorney General considered the degree of specificity required of an inmate in framing an open records request in light of the inmate's inability to conduct on-site inspection outside of the correctional facility in which he is housed. At page 5 of that decision we observed:
[A]n inmate confined in a state correctional facility . . . "is uniquely situated with respect to the exercise of his rights under the Open Records Act. " 95-ORD-105, p. 3. Although "all persons have the same standing" under the Act, an inmate "must accept the necessary consequences of his confinement . . . ." Id. The most obvious of these is, of course, the restrictions placed upon his movements within the facility, and, more importantly for purposes of our analysis, his movements outside of the facility and the impediments to onsite inspection of public documents at a remote location. In 00-ORD-225, we analyzed the propriety of an inmate's demand that a correctional facility "bring records to him" while he was confined in disciplinary segregation, so that he could exercise the right to inspect those records. At page 4, we observed:
12-ORD-082, p. 5, citing 00-ORD-225, p. 3, 4 (emphasis added). Under this line of reasoning, the Public Defender has no obligation to locate the requested records and transport them to Mr. Milburn to facilitate his right of inspection. Whatever hardship this may work upon him, he is foreclosed from conducting on-site inspection of his case file in the offices of the public defender and may access his file only upon prepayment of reasonable copying fees.
Although the public defender may, like any other public agency, elect to waive reasonable copying fees, it is not legally obligated to do so in the case of an indigent inmate. On this issue, 99-ORD-30 is controlling. At page 5 of that decision, the Attorney General observed:
KRS 61.872(3)(b) provides that public agencies must:
Additionally, KRS 61.874(1) provides:
(Emphasis added.) These statutes contain no provision for waiver of the prepayment requirement for inmates. It is, in our view, entirely proper for the [agency] to require prepayment, and to enforce its standard policy relative to assessment of charges . . . . It is on this basis that we affirm [the agency's] actions relative to delivery of public records. We do not address the issue of whether [the inmate] is entitled to free copies because he is involved in ongoing litigation. Our review under KRS 61.880(2) is confined to issues arising under the Open Records Act, . . . and pursuant to KRS 61.872(3)(b) [the agency] may properly require prepayment for copies requested under the Act.
99-ORD-30, p. 5.
We find no error in the Public Defender's refusal to transport Mr. Milburn's case file to Kentucky State Reformatory to facilitate his inspection of the file and in the Public Defender's imposition of reasonable copying fees. Having elected to assert his right of access to his case file under the provisions of the Open Records Act, he must first fulfill his obligations under the Act by designating a representative to conduct on-site inspection of the files or prepaying the reasonable copying fees properly imposed.
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:
Russell Gayle MilburnLeo G. SmithDaniel T. Goyette
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