Opinion
Opinion By: Andy Beshear, Attorney General; Taylor Payne, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Luther Luckett Correctional Complex ("LLCC") violated the Open Records Act in its disposition of inmate Kurt Lowe's request for "2 copies of my 6-month statement[.]" For the reasons stated below, we find that LLCC did not violate the Open Records Act.
On September 13, 2017, Lowe requested "2 copies of my 6-month statement" that he claimed was required "for a deadline per statute and required by court rules." The request indicated that a cash pay order ("CPO") was attached. On the same day, LLCC denied Lowe's request on the basis that Lowe did not have sufficient funds in his inmate account to cover the cost of the copying fees. LLCC further informed Lowe that he must submit paperwork from the court to receive free copies.
Lowe appealed LLCC's decision to this office. He argues that LLCC's decision violated Corrections Policies and Procedures (CPP) 14.4 II(F) because he attached a signed CPO to his open records request. Either in support of or tangential to this argument, Lowe contends that LLCC routinely provides him copies of records even though he does not have adequate funds if he provides a CPO. He states that LLCC debits his inmate account when adequate funds are available. He argues that LLCC only denies his requests when he seeks documents that implicate its employees in unlawful behavior. He claims the record sought here - the 6-month statement - will document these transactions and will be used in a civil suit against LLCC for denying past requests. He ultimately claims this was the true basis for LLCC denying his request.
In response to this appeal, LLCC maintains that it is not required to provide copies of open records to an inmate without adequate funds in his inmate account to cover the cost of copying fees. It affirms that Lowe only had eight cents ($ .08) in his inmate account at the time of his request. LLCC also stated that Lowe may be entitled to the copies despite the lack of adequate funds in his inmate account if he provided required documentation of the legal proceedings for which the copies of records were sought.
This office has consistently recognized that the Department of Corrections and its institutions may implement a policy that adheres to KRS 61.874(1), which permits a custodian of records to require advance payment of a prescribed fee for copies of requested records. See 17-ORD-098, 16-ORD-022, 11-ORD-119, 97-ORD-131, 95-ORD-105. An institution may deny an inmate's request for copies of records if an inmate does not have adequate funds to cover reproduction costs in his inmate account. 17-ORD-098. These decisions followed the Kentucky Court of Appeals' holding in
Friend v. Rees, 696 S.W.2d 325, 326 (Ky. App. 1985) that an inmate is entitled to receive a copy of a record only after "complying with the reasonable charge of reproduction. " Lowe does not present any argument to dispute application of this law to the case at hand, but instead confines his argument to LLCC's application of CPP 14.4 II (F) to his request and LLCC's alleged selective use of CPP 14.4 II (F) to comply with or deny prior requests.
CPP 14.4 II(F) is an internal policy of the Department of Corrections. It provides that an inmate shall be allowed to have copies upon signing a CPO even if his account does not have adequate funds to cover the expense if the inmate "can demonstrate by court order, statute, or court rules a definite deadline for a lawsuit concerning" a challenge to the legality of the inmate's conviction or confinement or seeking redress concerning the conditions of his confinement. CPP 14.4 II(F); see also CPP 14.4 II(C). However, whether LLCC complied with an internal policy is not an issue that may be adjudicated on an open records appeal. This office may only determine whether LLCC complied with the Open Records Act, not internal policies. 99-ORD-121. As mentioned above, the Open Records Act permits LLCC to require advance payment of the reproduction costs and to deny a request if an inmate does not have adequate funds to cover reproduction costs. See 17-ORD-098. Insofar as LLCC did not violate a provision of the Open Records Act, whether LLCC complied with CPP 14.4 II(F) is irrelevant for purposes of this appeal.
Lowe's further argument that LLCC has previously permitted him to obtain copies despite not having funds in his account is unpersuasive. First, he provides no proof of this claim. Second, this office's role in this matter is to determine whether LLCC violated the Open Records Act with respect to this specific request. LLCC's prior dispositions of requests are irrelevant. The record here indicates that Lowe did not have adequate funds to cover reproduction costs for two copies of the 6-month statement. Therefore, LLCC did not violate the Open Records Act by denying Lowes's request.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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 must not be named as a party in that action or in any subsequent proceeding.