Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Penitentiary (KSP) violated the Kentucky Open Records Act in denying inmate Stephanio Cole's (Appellant) April 26, 2018 request for records. Because the Open Records Act does not exempt indigent requesters from the requirement for payment of copying fees codified at KRS 61.874(1) 1, this office affirms the disposition of Appellant's request in accordance with governing authorities.
Appellant submitted a Request to Inspect Public Records form with KSP seeking one copy of "all disciplinary reports from July 2017 thru April 2018 at Bell County Forestry Camp, Kentucky State Reformatory, and Little Sandy Correctional Complex." KSP responded by memorandum on April 30, 2018. The response indicates that responsive documents were located. However, the custodian of records noted on the form:
"You have insufficient funds on your account to pay for the requested copies. Per KRS 61.874(1), which states in part, when copies are requested the custodian may require a written request and advance payment of the prescribed fee. Copies cost 10 cents per page. Resubmit your request when you have appropriate funds to pay for the copies. Account balance = $ 0.00 Cost for 60 pages = $ 6.00"
The records custodian attached a money transfer ticket to the response. The ticket verified that there was a denial of a money transfer from Appellant's account. Appellant submitted an appeal of this denial on May 3, 2018. Appellant states that he is indigent and cannot afford copies of the disciplinary reports, but the copies are necessary for federal lawsuits he has initiated against the named correctional facilities.
KSP responded to the appeal through counsel, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, on May 15, 2018. Ms. Barker points out that Appellant had a zero balance to his inmate's account at the time of this open records request. She argues that, "an indigent inmate is not entitled to free copies" under the Open Records Act. Citing KRS 61.874(1), she states that, "the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate," and that if an inmate requests copies and his inmate account does not contain sufficient funds to cover the copying fee, a public agency is not required to provide copies.
KSP correctly interprets KRS 61.847(1) as support for a requirement of "a written request and advance payment of [a] prescribed fee" for copies requested. Courts and this office have recognized the propriety of a Department of Corrections policy requiring advance payment of copying fees. 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. "
Friend v. Rees, 696 S.W.2d 325, 326 (Ky. App. 1985). 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). This Office has followed Rees and found that correctional facilities did not violate the Open Records Act in declining to provide copies to inmates without prepayment of reproduction charges in a line of decisions. See 18-ORD-013; 17-ORD-098; 17-ORD-083; 11-ORD-150; 09-ORD-040. Accordingly, KSP did not violate the Open Records Act by denying Appellant'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 per 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.
Footnotes
Footnotes
1 KRS 61.874(1) states: "Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records."