Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether Northpoint Training Center ("NTC") violated the Open Records Act in requiring advance payment before providing records or in withholding security camera footage. We find that NTC did not violate the Open Records Act in requiring advance payment before providing records or in withholding security camera footage.
Mark Crossland ("Crossland") submitted two open records requests to NTC dated May 27, 2014. One requested "a copy of the camera view from the Northeast end of the Inmate Dining Room pointing at the exit door shakedown area April 27, 2014, at approximately 6:00 a.m. to 6:12 a.m. North Dining room view only." The other requested "(1) copy of the (PREA) grievance written on April 27, 2014 by Mark L. Crossland # 206442. . . . The grievance # is as follows Grievance # 014-224." NTC denied the request on May 27, 2014 on the grounds that Crossfield did not have enough money in his account to pay for the records, stating that his account balance was $ 0.04. NTC cited to KRS 61.874(1), advising Crossland that an agency may require advance payment, and Corrections Policies and Procedures 6.1(II)(B)(4)(b), advising him that he may re-file his request upon receipt of sufficient funds to pay the fee. Crossland submitted two requests for records to NTC on May 29, 2014 which were substantively identical to the prior requests. NTC denied the request on May 30, 2014 in a letter almost identical to its prior denial, adding only a sentence that "the paperwork you sent pertains only to the court system and has nothing to do with receiving records at an institution."
Crossland initiated this appeal, which was received on June 9, 2014, on the grounds of NTC's "failure to act upon it in a correct manner that it should have been. . . . I have tried to show that I am a layman at the Law 'and' am Indigent so that this can be expidited as quickly as possible 'but' the institution will not allow me to gain access." Crossland attached both sets of requests, both denial letters, and attached an Affidavit in Support of In Forma Pauperis Status and an Affidavit of Indigency, both notarized. NTC responded on June 13, 2014. Regarding Crossland's requests for the PREA Grievance, NTC argued that KRS 61.874(1) authorizes an agency to request advance payment of fees, and citing several prior Open Records Decisions finding that a public agency is not required to provide copies to an inmate if the inmate cannot pay the costs. Regarding Crossland's requests for security camera footage, NTC argued that KRS 197.025(1) exempts records from disclosure that would pose a security risk if disclosed, citing several prior Open Records decisions finding that prison security camera footage may lawfully be withheld from disclosure under KRS 197.025(1).
KRS 61.874(1) provides that "when copies are requested, the custodian may require a written request and advance payment of the prescribed fee." "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 . . . are permitted to require advance payment of copying fees, and enforce standard policies regarding assessment of charges against inmate accounts . . . ." 11-ORD-119; see also
Friend v. Rees, 696 S.W.2d 325, 326 (Ky. Ct. App. 1985). Crossland's indigent or in forma pauperis status with a court does not waive the advance payment requirement. Accordingly, NTC did not violate the Open Records Act in withholding the PREA Grievance for failure to make advance payment of the prescribed fee.
Regarding the security camera footage, KRS 197.025(1) states that "no person shall have access to any records if the disclosure is deemed . . . to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." NTC did not specifically address Crossland's requests for the security camera footage in its responses to those requests, and does so for the first time in its response to Crossland's appeal. However, this office has repeatedly found that security camera footage in prisons may lawfully be withheld under the security exemption in KRS 197.025(1). 13-ORD-022; 08-ORD-082; 04-ORD-017. Accordingly, NTC did not violate the Open Records Act in withholding security camera footage.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Mark Crossland # 206442Cindy SanchezAmy V. Barker