Request By:
Russell Randolph, # 155933
Cheri Mattingly
Amy V. Barker
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Russell Randolph initiated this appeal challenging the denial by Luther Luckett Correctional Complex (LLCC) of a request he submitted on or around September 4, 2014, for a "copy of Court Call tape for DR Cat 6-4 heard on 7/8/14." LLCC advised Mr. Randolph that he did not have sufficient funds in his inmate account to pay for a copy of the requested video recording. On appeal Mr. Randolph alleged that on September 2-11, 2014 sufficient funds were in his account to pay the copying fee and that LLC had intentionally waited longer than five (5) days to respond, which violated KRS 197.025(7)(requiring a written response within five days, excluding weekends and legal holidays).
Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded to Mr. Randolph's appeal on behalf of LLCC. Ms. Barker correctly advised that LLCC actually received Mr. Randolph's request on Monday, September 8, 2014 and issued a timely written response on Monday, September 15, 2014. Citing KRS 61.874(1) and Friend v. Rees, 696 S.W.3d 325 (Ky. App. 1985), as well as prior decisions of this office, including 09-ORD-088, Ms. Barker further asserted that the Department of Corrections (DOC), and facilities under its jurisdiction, require advance payment before providing copies of public records, which does not violate the Open Records Act. A review of Mr. Randolph's Inmate Money Transfer Authorization, a copy of which Ms. Barker attached to her September 26, 2014 response, confirmed that he did not complete it until September 5, 2014. Even assuming for the sake of argument that LLCC received his request and the Authorization on September 5, she advised, Mr. Randolph spent his money on September 11 at the inmate canteen, prior to the expiration of the statutorily authorized time for a response by the agency. The memorandum directed to Ms. Barker by Open Records Coordinator Cheri Mattingly on September 25 confirmed that Mr. Randolph had $ 6.16 in his account on September 8, but spent $ 5.35 on September 11. As of September 12, Mr. Randolph only had 81 [cents] in his account. Ms. Barker noted that Mr. Randolph had the access to his inmate account balance prior to spending money in the canteen. His expenditure of the funds in the canteen was the reason for his inability to pay for the requested video recording. For these reasons, LLCC maintained that it did not violate the Act in denying Mr. Randolph's request.
"When copies are requested, the custodian may require a written request and advance payment of the prescribed fee." KRS 61.874(1). 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; 08-ORD-044; 09-ORD-088. While acknowledging "this prepayment policy might work a hardship on inmates, " the Attorney General has nevertheless upheld the policy as "consistent with the Open Records Act and the rule announced in Friend v. Rees, [above]." 97-ORD-131, p. 3; 09-ORD-071. The instant appeal presents no reason to depart from governing precedents; accordingly, this office finds that LLCC did not violate the Open Records Act in declining to provide Mr. Randolph with a copy of the recording in dispute given his inability to pay for the requested copy in advance. See 09-ORD-069. Either party may appeal it by initiating action in the appropriate circuit court under 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.