Request By:
Robert Cecil, # 157594
Deborah Coleman
Briney King
Amy V. Barker, Esq.
Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Reformatory ("KSR") violated the Kentucky Open Records Act in regard to inmate Robert Cecil's April 11, 2017, request for a copy of "the DOC-Division of Mental Health 'Complete SOTP parole report' forwarded to the Kentucky Parole [B]oard" concerning him. Because the Open Records Act permits public agencies to require advance payment of copying fees, as provided in KRS 61.874(1), we find that Mr. Cecil is not entitled to the requested records. We additionally find that the Department of Corrections failed to comply with KRS 61.872(4) .
Mr. Cecil's appeal to this office was received on May 18, 2017. It appears from the record that the request was addressed to Deborah Coleman, Director of the Department of Corrections' Division of Mental Health. In a response to the appeal dated May 23, 2017, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, does not deny Mr. Cecil's assertion that the Department never responded to his request. She points out, however, that the proper recipient of the request would have been the Open Records Coordinator at KSR, pursuant to Corrections Policy and Procedure (CPP) 6.1 (incorporated by reference in 501 KAR 6:020).
KRS 197.025(7) requires that the Department of Corrections respond to an open records request within five days after receipt, excluding weekends and legal holidays. In cases where a request is misdirected, KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
"[A]n administrative agency cannot by its rules and regulations, amend, alter, enlarge or limit the terms of legislative enactment."
Com. v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) (internal quotation marks omitted; construing CPP 6.1). While Mr. Cecil is required to submit his request through proper channels as required by CPP 6.1, the Department in turn is required to reply to a misdirected request in accordance with KRS 61.872(4). 1 Cf . 16-ORD-047 (Department of Corrections cured deficiency under KRS 61.872(4) by belatedly informing inmate as to proper custodian of records). Since this communication apparently never took place in this instance, we find that the Department committed a procedural violation of the Open Records Act.
Substantively, we agree with the argument presented by Ms. Barker, who advises that Mr. Cecil has not completed a money authorization for his request, nor used the designated request form, as required by CPP 6.1. We adopt the reasoning contained in 08-ORD-044, a copy of which is attached hereto and incorporated by reference. The courts and this office have recognized the propriety of a Department of Corrections policy requiring advance payment of copying fees and the use of a particular form. 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, Mr. Cecil is not entitled to copies of facility records without prepayment.
Ms. Barker further argues that Mr. Cecil may not obtain the SOTP (Sex Offender Treatment Program) report because it contains opinions and recommendations not adopted by the Parole Board, which are therefore preliminary and exempt from disclosure under KRS 61.878(1)(i) and (j). ( See 14-ORD-008 and authorities cited therein.) She further argues, citing 05-ORD-265 et al. , that the "Nature of Offense" section of the SOTP report is exempt "because it contains information gathered by a probation and parole officer in the conduct of his duties," which is prohibited from disclosure by KRS 439.510, as incorporated into the Open Records Act by KRS 61.878(1)(l). While there may be merit to these arguments, we do not reach them at this time because Mr. Cecil's failure to provide a money authorization or use the proper request form is dispositive of the present appeal.
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 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 Although Ms. Barker asserts that Mr. Cecil "is aware of the custodian of the record" because he mentions his name in the letter of appeal, this fact would not excuse the Department from making the required response under KRS 61.872(4).