Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The issue presented in this decision is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in its disposition of requests for medical records from inmate Stephanio Cole. For the reasons set forth below, we find that KSP did not violate the Act.
Inmate Stephanio Cole initiated this appeal by letter dated May 1, 2018, challenging the denial by Kentucky State Penitentiary ("KSP") of requests, dated April 25, 2018, for copies of his medical records from July 2017 to April 2018, and copies of his mental health session transcripts from July 2017 to May 2018. In a timely written response of May 2, 2018, Melissa Edmonds, Administrative Assistant, Medical Department advised Mr. Cole that his inmate account had insufficient funds to pay for the requested copies. She also denied his requests because he did not provide a separate cash paid out (CPO) form with each of his three requests, and because each of the three requests did not have a Classification Treatment Officer's signature as required by the KSP Warden's memorandum of June 15, 2017. On appeal, Mr. Cole argued that he does not have funds to pay for the copies he requested but needs the records for civil suits he has filed, or will be filing.
Upon receiving notification of Mr. Cole's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSP. Relying upon
Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), and prior Open Records Decisions, Ms. Barker correctly asserted:
Under the Open Records Act an indigent inmate is not entitled to free copies. KRS 61.874(1) provides that a records custodian may require a written request and advance payment of fees for copying, and if applicable, postage. The Open Records Act does not provide for the waiver of reproduction charges for the indigent. In addition, the Attorney General has held 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. See 17-ORD-232, 17-ORD-098, 17-ORD-084, 17-ORD-083, 15-ORD-022, 14-ORD-243, 14-ORD-214, 11-ORD-119, 08-ORD-096, 08-ORD-044, OAG 91-210, following Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985).
"When copies are requested, the custodian may require a written request and advance payment of the prescribed fee." KRS 61.874(1). Courts and this office have both recognized the propriety of a Department of Corrections policy requiring advance payment of copying fees. In Friend v. Rees , 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, " the Attorney General 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). Therefore KSP did not violate the Open Records Act by denying Mr. Cole's request despite his inability to pay for the requested copies.
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.