Opinion
Opinion By: Jack ConwayAttorney GeneralMichelle D. HarrisonAssistant Attorney General
Open Records Decision
Mark Crossland initiated this appeal challenging the denial by Eastern Kentucky Correctional Complex (EKCC) of his October 27, 2014 request for a copy of "the grievance filed on [10/26/14]. The (2) page grievance consists of a[n] issue concerning a Corrections Officers [sic] remark to the below listed inmate on 10/26/14." In a timely written response, Open Records Coordinator Sonya Wright correctly advised Mr. Crossland that under KRS 61.874(1) "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. " Citing Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985) and OAG 91-210, EKCC further observed that, "if an inmate requests copies and his inmate account does not contain sufficient funds to cover the copying fee, a public agency is not required to provide copies (even to indigent inmates) ."
Upon receiving notification of Mr. Crossland's appeal, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of EKCC. Ms. Barker advised that the Department of Corrections (DOC) "requires advance payment for copies of records as allowed pursuant to KRS 61.874(1)." Relying upon prior decisions of this office, and 09-ORD-088 in particular, EKCC reiterated its position that requiring advance payment for copies does not violate the Open Records Act. Ms. Barker noted that Mr. Crossland made a similar argument in a recent appeal involving a different correctional institution, which resulted in 14-ORD-135, and was not successful.
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 courts and this office have recognized the propriety of a DOC policy requiring advance payment of copying fees. In Friend v. Rees , above, 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. " 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. 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 DOC Policies and Procedures (CPP) 6.1. More specifically, the Attorney General affirmed the denial by EKCC of the inmate request in dispute because of his failure 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, 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. See 06-ORD-078; 08-ORD-157; 09-ORD-069; 11-ORD-119; 12-ORD-126; 14-ORD-135. Inasmuch as the challenged policy "does not interfere, or threaten to interfere, with [Mr. Crossland's] statutory right of access to nonexempt public records, " but is consistent with KRS 61.874(1), as well as Friend v. Rees , the Attorney General affirms the denial of Mr. Crossland's request. 08-ORD-044, p. 4.
Either party may appeal this decision 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.