Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in its disposition of inmate Danny Hibbitts' June 6, 2018, request for "JPay 1 Colored Photographs printed off on [certain] dates [in March 2018]." For the reasons stated below, we find no violation of the Act.
KSP denied the request on June 8, 2018, stating: "Per DW [Deputy Warden Skyla] Grief, KSP does not provide photos in color. " KSP offered to print out photographs from Mr. Hibbitts' JPay account in black and white if he should so request. In his appeal, which this office received on June 15, 2018, Mr. Hibbitts argues that other institutions print JPay photographs in color for inmates, and further that JPay's contract with the Department of Corrections states: "JPay shall ensue [ sic ] that each mailroom has access to a PC connected to the internet and a printer to review and distribute hard copies of E-Messages."
In its response to the appeal, KSP points out that its open records office does not have a color printer due to budget constraints and has never provided inmates with color copies of photographs attached to JPay messages. KSP further states that the only color printer at the institution belongs to the Business Office and the limited budget for ink and maintenance would not accommodate use of that machine by the open records office. Therefore, KSP argues that providing color copies would be "unduly burdensome" under KRS 61.872(6). Additionally, KSP contends that providing color photographs "would jeopardize the security of the Institution by opening a window for inmates to request color photographs of employees or other inmate injuries." Finally, citing 08-ORD-242, KSP characterizes the unavailability of color copies as an exercise of discretion and "an example of the necessary consequences of an inmate's confinement."
As a threshold matter, we note that Mr. Hibbitts' request was not merely for color printouts of photographs to be made, but specifically for "JPay Colored Photographs printed off on following dates," with a list of dates in March 2018. (Emphasis added.) If, as KSP asserts, no such color photographs were printed on those dates, then Mr. Hibbitts requested records that did not exist. "[I]t is incumbent on [Mr. Hibbitts] to frame his requests as requests for existing public records. " 14-ORD-130. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The provision of the Department of Corrections' contract with JPay quoted by Mr. Hibbitts does not require the availability of a color printer, but merely a printer. Since there is no apparent reason why such color copies should exist, it might have been a sufficient response in this case had KSP asserted that no color printouts were made on the dates given.
Furthermore, it is evident that the images in Mr. Hibbitts' JPay account exist, in color, only in electronic form. With regard to electronic records, KRS 61.874(2)(a) provides:
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format , as designated by the party requesting the records, where the agency currently maintains the records in electronic format.
(Emphasis added.) "Standard hard copy format" is as follows:
The minimum standard format in paper form shall be defined as not less than 8 1/2 inches x 11 inches in at least one (1) color on white paper. . . . Any request for a public record in a form other than the forms described in this section shall be considered a nonstandardized request.
KRS 61.874(2)(b) (emphasis added). Therefore, since monochrome copies are the minimum standard format for records in paper form, a request for full-color copies is a nonstandardized request.
KRS 61.874(3) provides, in part:
If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
(Emphasis added.) Accordingly, it was within KSP's discretion under KRS 61.874(2)(b) whether to provide color printouts of electronic records in its possession. 2 16-ORD-225. Mr. Hibbitts' allegation that other correctional facilities have provided color copies of JPay photographs to inmates is not material to whether KSP had any obligation to do so.
In light of these threshold issues, we find it unnecessary to address KSP's arguments regarding security risk or unreasonable burden. Since Mr. Hibbitts did not request existing public records and was not entitled to have records produced in a nonstandardized format, we find no violation of the Open Records Act.
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.
Footnotes
Footnotes
1 JPay is a contractor which provides both payment services for inmate accounts and a means by which inmates may receive electronic messages from friends and family members. Inmates can view the e-messages by means of internet-connected kiosks at KSP. 15-ORD-062.
2 In so ruling, we do not depart from our holding in 13-ORD-023 that a public agency has a duty to provide photographs in a "legible" form.