Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Western Kentucky Correctional Complex violated the Kentucky Open Records Act in the disposition of Charon T. Anderson's July 15, 2013, request for a "free copy" of her medical and psychiatric records from August 2011 through July 15, 2013, and her July 18, 2013, request for "Detention Orders for the month of 2013." 1 In a timely written response, WKCC advised Ms. Anderson that "[u]nder KRS 422.317(2), the Department of Corrections is not considered a health care provider and is therefore exempt from providing free copies of medical records." 2 Citing KRS 61.874(1), WKCC further explained that a "records custodian may require a written request and advance payment of fees for copying, and if applicable, postage. The Open Records Act does not provide for the waiver of reproduction charges for the indigent. " In addition, WKCC noted, the Attorney General has previously held that "if an inmate requests copies and his account does not contain sufficient funds to cover the copying fee, the Department is not required to provide copies (even to indigent inmates) . See OAG 91-20, following Friend v. Rees, [696 S.W.2d 325 (Ky. App. 1985)." Upon receiving notification of Ms. Anderson's appeal, Assistant Counsel Linda M. Keeton, Justice and Public Safety Cabinet, responded on behalf of WKCC and reiterated this position. 3
On July 22, 2013, WKCC responded to Ms. Anderson's July 18 request, which it received on July 19, on the disposition section of the request form, advising that "a couple of detention orders" were "scanned into KOMS for June. If you need further info regarding them your case worker will be able to assist you. You didn't specify what you are wanting." In responding to Ms. Anderson's appeal, WKCC initially maintained this position. However, upon further inquiry from this office, 4 WKCC supplemented its original response to her appeal, explaining that upon further clarification it determined that Ms. Anderson "has funds in her inmate account to cover the fee for copies of all of her June 2013 Detention orders" and made copies available to Ms. Anderson; accordingly, WKCC correctly asserted that any related issues have been rendered moot per 40 KAR 1:030, Section 6, pursuant to which "[i]f the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Thus, our analysis will focus exclusively upon the agency's disposition of Ms. Anderson's July 15 request, which is affirmed in accordance with existing legal authority, including 08-ORD-044 and 08-ORD-096.
In addressing the unique issues concerning access to public records in a correctional setting, 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 OAG 79-546; OAG 79-582; OAG 89-86; 92-ORD-1136; 08-ORD-067; 11-ORD-119.
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 WKCC 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 Department of Corrections Policies and Procedures (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, this office specifically upheld CPP 6.1, II.B.4. (requiring completion of Authorization to Use Inmate Account Form to process inmate request); the reasoning of that decision applies with equal force on the facts presented. A copy of 08-ORD-044 is attached hereto and incorporated by reference. This position was affirmed in the context of a request for medical records in 08-ORD-096 (adopting 08-ORD-044 in upholding the disposition of the request by EKCC per KRS 422.317(2) and KRS 61.874(1) because the Act does not contain a waiver of those requirements for indigent requesters) . A copy of that decision is attached hereto and, in relevant part, adopted. See also 05-ORD-228; 06-ORD-030; 08-ORD-157; 09-ORD-069.
Here, as in 08-ORD-044 and 08-ORD-096, the inmate requester was not denied access to records. Instead, she was required to adhere to policies that did not "amend, alter, enlarge, or limit the terms of the Open Records Act. " Department of Corrections v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) citing Camera Center, Inc. v. Revenue Cabinet, 34 S.W.3d 39, 41 (Ky. 2000). See 06-ORD-030; 12-ORD-117. Inasmuch as the challenged policy "does not interfere, or threaten to interfere, with [Ms. Anderson's] statutory right of access to nonexempt public records, " and is consistent with provisions of the Open Records Act, this office finds that WKCC did not violate the Act by requiring compliance with it and trusts that any remaining issues will be resolved when WKCC provides Ms. Anderson with the requested copies upon receipt of the necessary documentation and payment. 08-ORD-044, pp. 4-5; 11-ORD-119.
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:
Charon T. Anderson, # 177122Klaytor BurdenAmy V. Barker
Footnotes
Footnotes
1 Ms. Anderson advised that on July 18, 2013, "Ms. Butts explained that I was not on a 20 day behavior Detention Order. That is the only order I have for June 2013. Are there any others?"
2 In relevant part, KRS 422.317 provides:
(2) The Department of Corrections shall not be considered as a health care provider under this section; however, the department may make medical records of an individual inmate available to that individual inmate unless the department, through its designee, determines that the provision of the record is subject to the provisions of KRS 197.025.
3 Ms. Keeton observed that in her July 29, 2013, letter, a copy of which Ms. Anderson included with her appeal, Ms. Anderson "does not address an open records matter, but rather admits that she is in possession of a document that she should not have." Citing KRS 61.880(1), 99-ORD-121, and 08-ORD-142, Ms. Keeton correctly asserted that the Attorney General's Office has acknowledged that such issues cannot be resolved in this forum, and "the investigation requested by the inmate in this matter is not appropriately handled by the Attorney General in an Open Records appeal."
4 By e-mail directed to Ms. Keeton on August 7, 2013, the undersigned Assistant Attorney General asked the agency to "please explain what other info[rmation] Ms. Anderson needed to provide in order to have WKCC provide her with detention orders for June 2013?"