14-ORD-249

14-ORD-249

December 23, 2014

In re:        Adrian Brown/Kentucky State Penitentiary

Summary:        Inmate open records appeal, as it related to denial of original open records request, was time-barred because it was not filed within twenty days as required by KRS 197.025(3).  Appeal of denial of later request for records was not time-barred but was without merit based on inmate’s continuing inability to pay for copies of those records.

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 Adrian Brown’s November 10, 2014 appeal from the Kentucky State Penitentiary’s denial of his requests for records relating to good time credit earned during his incarceration is time-barred, as it relates to two requests submitted on October 16, 2014, and without merit as it relates to two nearly identical requests submitted on October 24, 2014.  KSP denied Mr. Brown’s October 16 requests on October 17 advising him that he had insufficient funds in his inmate account to pay for the requested copies. Mr. Brown did not appeal this denial. KSP denied his October 24 requests on October 27, again advising him that his inmate account contained insufficient funds to pay for the requested copies. Mr. Brown appealed that denial on November 10, 2014.

        Mr. Brown’s November 10 appeal is time-barred, as it relates to KSP’s denial of his October 16 requests, under KRS 197.025(3). That statute provides:

KRS 61.870 to 61.884 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.

Because he is a person confined in a penal facility, and because he failed to challenge KSP’s denial of his October 16 requests on or before November 6, 2014, Mr. Brown’s appeal is untimely. We are foreclosed from issuing an open records decision by KRS 197.025(3). 02-ORD-54; 14-ORD-054.

        In 14-ORD-054 this office rejected an inmate’s attempt to revive a time-barred open records appeal of a denial of his request for his sex offender treatment program report. The penal facility’s original denial of that request was based on KRS 61.878(1)(i) and (j) and the report’s preliminary character. While we continue to ascribe to the view that an inmate “cannot circumvent the twenty day deadline set forth in KRS 197.025(3) by resubmitting the same request,” we find that the position works an undue hardship on the inmate when the denial of his or her request is based on insufficient funds to pay for the requested copies. If, in fact, the inmate’s account contains insufficient funds to defray the cost of copies, the inmate has nothing to gain by initiating an appeal of that denial. In such cases, we do not believe that an appeal of a denial of a subsequent request for the same records should be foreclosed.

        While we do not find that his November 10 appeal of KSP’s denial of his October 24 requests¹ is time-barred, Mr. Brown continues to lack sufficient funds in his inmate account to defray the cost of copies. This is the legal basis on which KSP denied those requests. Consistent with the rule announced in Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), and numerous open records decisions of this office, KSP may properly impose reasonable copying fees on Mr. Brown. In 95-ORD-105 this office observed:

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 and the manner in which he conducts his financial business dictated by the facility.”  [Citations omitted.] Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relating to application for, and receipt of public records.

. . .

[KRS 61.872(3)(b) and KRS 61.874(1), authorizing the imposition of copying fees] contain no provision for waiver of the prepayment requirements for inmates. It is, in our view, entirely proper for the facility to require prepayment, and to enforce its standard policy relating to assessment of charges to inmate accounts, despite the delays this may entail.

Consistent with this view, we find that Kentucky State Penitentiary did not violate the Open Records Act in denying Mr. Brown’s October 24, 2014 requests based on the fact that his inmate account contained insufficient funds to pay for the requested copies.

        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.

                                                Jack Conway

                                                Attorney General

                                                Amye L. Bensenhaver

                                                Assistant Attorney General

#476

Distributed to:

Adrian Brown, #184749

Amy V. Barker