Opinion
Opinion By: Jack ConwayAttorney GeneralJames M. HerrickAssistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Kentucky Open Records Act in its disposition of two requests from inmate Raemon Anderson dated February 24, 2015. For the reasons stated below, we find no violation of the Act.
Mr. Anderson's first request was for copies of two disciplinary reports. The records custodian's disposition, dated March 3, 2015, stated as follows:
This office received your Open Records request February 25, 2015. It is denied because you have insufficient funds on your account to pay for the requested copies.
Pursuant to KRS 61.874(1), which states in part, when copies are requested the custodian may require a written request and advance payment of the prescribed fee. This office requires a signed CPO with sufficient money on your account to cover the reproduction fee. Copies cost 10 cents per page. Resubmit your request when you have appropriate funds to pay for the copies.
This response was timely under KRS 197.025(7), which allows five (5) days exclusive of weekends and legal holidays.
Mr. Anderson's second request was for a "Grievance filed by myself ca. 2014, concerning 'rejected mail, '" and for a grievance filed by another inmate concerning mail delivered to the wrong inmate. The March 3 response, in substantial part, stated:
There was not a record found of you filing any Grievance's [sic] concerning "rejected mail" in 2014 or 2015.
The records you request concerning the grievance filed by Michael Force 167341 concerning mail mix-up does not contain a specific reference to you and the records are exempt from disclosure to you under KRS 61.878(1)(l) and KRS 197.025(2).
Mr. Anderson appealed to this office on March 19, 2015. Catherine M. Stevens, Staff Attorney, Justice and Public Safety Cabinet, responded to the appeal on April 3, 2015.
Because the Open Records Act does not exempt indigent requesters from the requirement for payment of copying fees codified at KRS 61.874(1), this office affirms the disposition of Mr. Anderson's first request in accordance with governing authorities. In our view, the reasoning contained in 08-ORD-044, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented.
The courts and this office have recognized the propriety of a Department of Corrections policy requiring advance payment of copying fees. In Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), 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. While acknowledging that "this prepayment policy might work a hardship on inmates, " this office has nevertheless upheld the policy as "entirely consistent with the Open Records Act and the rule announced in Friend v. Rees." 97-ORD-131 (quoting 95-ORD-90). In accordance with these precedents, KSP did not violate the Open Records Act by denying Mr. Anderson's request despite his inability to pay for the requested copies.
In regard to Mr. Anderson's request for a grievance that could not be found, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such record exists. Accordingly, we can find no violation of the Open Records Act in KSP's response to Mr. Anderson's request.
Finally, as to Mr. Anderson's request for another inmate's grievance, under KRS 197.025(2) Mr. Anderson is not entitled to view records that do not contain a specific reference to him. Our consistent interpretation of this statute has been that only records mentioning the inmate by name need be provided. 05-ORD-130; 03-ORD-073; 99-ORD-157; 98-ORD-150. KSP has confirmed that the grievance does not contain a specific reference to Mr. Anderson. Therefore, we find that KSP did not violate the Open Records Act in its disposition of Mr. Anderson's requests.
A party aggrieved by this decision may appeal it 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.