Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Johnny R. Phillips appeals Northpoint Training Center's alleged failure to respond to his January 6, 2016, request for "one complete copy" of records relating to inmate transfers and to Mr. Phillips' lawsuit against NTC. Noting that he sent this request "via U.S. Regular mail, " Mr. Phillips complains that he received "absolutely no response."
In a response to this office's notification of Mr. Phillips' open records appeal, NTC denied receipt of Mr. Phillips' request but agreed to mail him twenty pages of responsive records upon prepayment of copying fees. NTC indicated that the "names and institutional numbers of other inmates" identified in the responsive records would be redacted pursuant to KRS 197.025(1) inasmuch as disclosure of this information constitutes a threat to security.
NTC did not violate the Open Records Act in denying Mr. Phillips access to the "names and institutional numbers of other inmates" identified in the records deemed responsive to his request. KRS 197.025(1) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
This access restriction, which is deemed incorporated into the Open Records Act by KRS 61.878(1)(1), 1 has been construed to vest the Department of Corrections with "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which . . . represents a threat to institutional security. " See 09-ORD-039 (enclosed) . It is intuitive to deem the disclosure of names and institutional numbers of other inmates identified in these responsive records a threat to institutional security. We affirm the partial denial of Mr. Phillips' request.
We also affirm NTC's position that Mr. Phillips must pay for copies of the records identified in his request before those records are transmitted to him. KRS 61.872(3)(b) and KRS 61.874(1) speak directly to this point by providing, respectively, that "[i]f the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing ," and that "[w]hen copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate ." (Emphasis added.) The Open Records Act does not recognize an exception to these requirements for inmates. Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985); 14-ORD-243 (enclosed) .
We do not decide the question of NTC's alleged failure to respond to Mr. Phillips' request. Mr. Phillips maintains that he transmitted his request by regular U.S. Mail. NTC asserts that it did not receive the request until it was notified of Mr. Phillips' appeal. The Attorney General is unable to resolve a factual dispute regarding actual delivery and receipt of a request and we therefore make no finding on this question. 14-ORD-099 (enclosed) .
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.
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