Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Marvin Wayne Phipps initiated this appeal by letter dated November 24, 2014, alleging that Kentucky State Reformatory (KSR) had failed to issue a timely written response to his November 4, 2014 request to inspect four categories of records documenting his payment of specified medical and legal services. Upon receiving notification of Mr. Phipps' appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. Ms. Barker advised that KSR actually received Mr. Phipps' request on November 10, 2014, as the stamped copy attached to her December 8, 2014 letter confirmed. She correctly noted that KSR had five days, excluding weekends and holidays, in which to issue a written response under KRS 197.025(7), which KSR did on November 17, 2014. 1 Mr. Phipps did not provide this office with a copy of that response. Quoting the language of 40 KAR 1:030, Section 1, Ms. Barker argued that because Mr. Phipps failed to submit a copy of the November 17 response from KSR with his November 24 appeal, in accordance with KRS 61.880(2), this office should not consider his appeal. This office agrees with KSR that Mr. Phipps must "comply with both the statute and the regulation concerning the documents he must submit in order to pursue an appeal."
KRS 61.880(2)(a) establishes the requirements and timeline for an Open Records Appeal. That statute provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
In sum, the written request and the agency's written response, if any, comprise the record upon which the Attorney General relies in reviewing the actions of a public agency. Thus, 40 KAR 1:030, Section 1 provides that "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial."
Mr. Phipps, an inmate confined in a penal facility, is required to "challenge any denial of an open records request with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty days of the denial pursuant to the procedures set out in KRS 61.880(2) . . . ." KRS 197.025(3). This provision narrows the window of opportunity for an inmate to appeal the disposition of his request by DOC or a correctional facility such as KSR, but "does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 11-ORD-073, p. 3. See 04-ORD-022; 13-ORD-011. Even assuming that Mr. Phipps had perfected his appeal, however, KSR was also correct in contending, alternatively, that he is precluded from inspecting any existing records that would satisfy his request at KSR by virtue of his confinement at NTC. He is currently incarcerated at NTC, Ms. Barker observed, "which prevents him from inspecting the records since he seeks records from KSR. He cannot conduct on-site inspection in the KSR institutional office where the inspection would normally be conducted. The institution is not obligated to make the records available to him at another institution." KSR advised Mr. Phipps that he may request and pay for copies in lieu of conducting on-site inspection per KRS 61.874(1). Relying upon KRS 61.872(3), as well as prior decisions of this office, primarily 95-ORD-105, KSR maintained that being housed at NTC prevents Mr. Phipps from conducting on-site inspection at KSR. Based upon the following, this office agrees.
The Attorney General has consistently recognized that an inmate in a correctional facility is uniquely situated with regard to exercising his rights under the Open Records Act. 95-ORD-105, p. 3; 05-ORD-080. While "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof," the movements of an inmate within a facility are restricted; accordingly, an inmate such as Mr. Phipps "must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. " 95-ORD-105, p. 3; 05-ORD-080. For example, by virtue of his confinement an inmate "may be foreclosed from exercising the right to inspect public records prior to obtaining copies." 05-ORD-080, p. 4. The reasoning found in 05-ORD-080 is controlling on this issue; a copy of that decision is attached hereto and incorporated by reference. "Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined. " 95-ORD-105, p. 3; 05-ORD-080; 09-ORD-138. Consistent with governing precedents, the Attorney General finds no error in the agency's position that Mr. Phipps is not entitled to conduct on-site inspection of the records in dispute.
Either party may appeal this decision 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.
Distributed to:
Marvin Wayne Phipps, # 176844Samantha RashAmy V. Barker
Footnotes
Footnotes
1 KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.