Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Eastern Kentucky Correctional Complex ("EKCC") violated the Kentucky Open Records Act in denying inmate Leonel Martinez's December 6, 2017, request for "copies of legal mail . . . mailed out on 11-06-17." 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. Martinez's request in accordance with governing authorities.
EKCC denied Mr. Martinez's request on December 13, 2017, due to insufficient funds to cover the copying fees. The record shows that the form for "Authorization to Use Inmate Account" was dated December 7, 2017, and on December 12, 2017, the facility determined that the number of responsive records (apparently one page) amounted to a copying charge of ten cents, which exceeded the balance of Mr. Martinez's inmate account. In his appeal, received in this office on December 19, 2017, Mr. Martinez argues that EKCC "intentional[ly] failed to respond [within] five days" in order to wait until he had insufficient funds in his inmate account.
KRS 197.025(7) grants a correctional facility five days, excluding Saturdays, Sundays, and legal holidays, to issue a response to an inmate's request for records. In a response to the appeal dated December 21, 2017, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, advises that "EKCC staff processed the request through the various staff to locate and count the pages of records, submit the payment authorization to the inmate account office, and send a response indicating that there was not enough money in the account to pay for the copy within the allowed five days to send a response. " Since December 13, 2017, was the fifth day under KRS 197.025(7), we find that the response was timely.
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, 696 S.W.2d 325 (Ky. 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, EKCC did not violate the Open Records Act by denying Mr. Martinez's request despite his inability to pay for the requested copy.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.