Request By:
Kurt Lowe, # 284794
Heather McManis
Amy Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Luther Luckett Correctional Complex ("LLCC") violated the Open Records Act in failing to respond to a set of three open records requests from inmate Kurt Lowe and in denying him the requested records after the correctional facility received the requests on appeal. We are unable to resolve the factual dispute regarding receipt of the request by LLCC, but find no error by LLCC in denying his requests due to his failure to comply with Department of Corrections Policy and Procedure 6.1. The Open Records Act does not exempt indigent requesters from the requirement for payment of copying fees codified at KRS 61.874(1), and the correctional facility's requirement that inmates submit open records requests on a specific form is affirmed under prior decisions of this office and KRS 197.025.
Inmate Kurt Lowe submitted an appeal dated May 22, 2017, of the open records requests he submitted, dated April 21, 2017. The copy of the requests that he provided to this office asked for:
1. All emails and attachments, sent to and from all recipients, employed by the Kentucky Department of Corrections and working at the Luther Luckett Correctional Complex, that are related to Inmate Kurt J. Lowe # 284794. These emails and their attachments, are dated from December 2016 to April 21, 2017. The recipients are either working at KYDOC Home Office or Green River Correctional Complex.
2. All records contained within the KOMS files related to Inmate Kurt J. Lowe # 284794, this would [ sic ] up to and including but not limited to, commonly used files, red flag files, notes, memos, pictures, video, faxes, emails with attachments, i-phone messages with attachments, spread sheets, etc.
3. All i-phone messages with attachments, sent to and from all recipients, by the Kentucky Department of Corrections and working at the Luther Luckett Correctional Complex, that are related to Inmate Kurt J. Lowe # 284794. These i-phone messages with attachments, are dated from December 2016 to April 21, 2017. The recipients are either working at the KYDOC Home Office or the Green River Correctional Complex.
Inmate Lowe also requested that "Pursuant to KRS 61.872(3)(b), I am requesting that I be provided with the cost for duplication of the available records, so that I may have the money deposited into my account and utilize a 'cash-pay-order' for the copies, which are required for deadlines referred to in CPP 14.4 II A-F." The requests were addressed to "LLCC Records Custodian" but were not made on a "Request to Inspect Public Records" form. Inmate Lowe appealed to this office claiming that LLCC had failed to respond to his requests within three business days. 1
After receipt of the appeal, Ms. Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of LLCC. Ms. Barker's response included two attachments from Heather McManis, Offender Records Supervisor, LLCC. The first attachment, dated May 9, 2017, stated that "This office did not receive an open records request dated 4/21/2017 . . . There is nothing that has come through our office dated this date asking for these items." The second attachment from Ms. McManis, also dated May 9, 2017, showed a zero dollar balance for Lowe's "Inmate Bank Accounts." 2
Request Not Received Prior to Appeal . Ms. Barker's response to the appeal included Ms. McManis's May 9 memo to show that LLCC had not received Inmate Lowe's requests prior to receiving it on appeal, and that LLCC staff searched for Inmate Lowe's requests upon receiving the appeal but did not find the requests.
In the absence of conclusive proof that LLCC received the requests, such as a certified mail receipt and proof of service confirming mail delivery or a fax cover sheet confirming successful fax transmission, we cannot resolve the factual dispute between these parties. 02-ORD-01 (agency cannot be faulted for failure to respond to request where no proof of delivery exists); compare, 09-ORD-060 (agency failed to respond to requests whose delivery was verified by certified mail receipt and fax confirmation sheet) .
Failure to Follow Corrections Policy and Procedure 6.1 . Ms. Barker further explained that, even after receipt of the open records requests upon appeal, LLCC was not required to comply with the request. As pointed out by Ms. Barker, inmate Lowe's requests did not comply with Corrections Policy and Procedure (CPP) 6.1. 3 That procedure (specifically CPP 6.1, II.B.1) requires an inmate to use a particular form, "Request to Inspect Public Records, " when requesting records under the Open Records Act 4 ; and to "also file an Authorization to Use Inmate Account form," (CPP 6.1, II.B.4) with the request. Inmate Lowe did not use the Request to Inspect Public Records form and did not file an Authorization to Use Inmate Account and therefore did not comply with CPP 6.1. Further, as explained by Ms. Barker, Mr. Lowe does not have funds in his "Inmate Bank Accounts" to prepay for the cost of the records.
In addressing the unique issues surrounding access to public records in the context of a correctional facility, the Attorney General has repeatedly recognized:
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 . . . Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records.
95-ORD-105, p. 3, citing 94-ORD-90, p. 2.
Moreover, this office has recognized that the Department of Corrections is vested with broad discretion in matters related to the safety, security, and operation of its correctional institutions. See 94-ORD-40. In a proper exercise of its discretion, the Department incorporated CPP 6.1 through 501 KAR 6:020. CPP 6.1.VI.B.1 requires an inmate to use the "Request to Inspect Public Records" form to request "a public record that pertains to him in the possession of the principal office or an institution," and CPP 6.1.VI.B.2 requires an inmate to forward his request by institutional mail to the Open Records Coordinator, for the legitimate purpose of maintaining order and security at institutions such as LLCC. Our office has consistently recognized that KRS 197.025(1) 5 vests the Commissioner, Department of Corrections, or his designee, with broad discretion in determining when a threat is posed to the safety and security of the inmates, staff, and institution. 03-ORD-190, p. 5. The Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3. We are not in the position to second guess the Department or to conclude that its policy requiring inmates to use a "Request to Inspect Public Records" to make their open records requests was an abuse of this discretion. We find no violation by LLCC in denying inmate Lowe's requests based upon his failure to use the "Request to Inspect Public Records" form.
Lack of Funds to Pay for Copies . 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 Attorney General has previously held that correctional facilities such as LLCC may properly require prepayment of copying fees, and enforce standard policies regarding assessment of charges against inmate accounts, despite the delay in processing the request which may inevitably result. 95-ORD-105, p. 3. Ms. Barker correctly stated that inmate Lowe "can make a new request when he has funds in his account."
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, 696 S.W.2d 325 (Ky. Ct. App. 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, LLCC did not violate the Open Records Act by denying inmate Lowe's requests despite his inability 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 As pointed out by Ms. Amy Barker, Assistant General Counsel, Justice and Public Safety Cabinet, on appeal, had LLCC received the request, it would have had five business days, not three days, in which to respond to inmate Lowe's request, pursuant to KRS 197.025(7), which states: "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."
2 We acknowledge receipt of correspondence from inmate Lowe, dated May 16, 2017, but find that correspondence to contain complaints against LLCC employees that are outside the authority of this office to consider under KRS 61.880(2).
3 CPP 6.1 is incorporated by reference in 501 KAR 6:020.
4 This requirement, that inmates use a specific form to make open records requests to the correctional facility, is an exception to the rule that a public agency may not require a requester to use a specific form to make open records requests. "A public agency cannot reject a request, or avoid its duty under the Act, merely because the requester did not use a particular form or employ specific legal terminology." 01-ORD-247.
5 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." KRS 197.025(1) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which exempts: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."