23-ORD-272
October 10, 2023
In re: Kyle Thompson/Little Sandy Correctional Complex
Summary: The Little Sandy Correctional Complex (“the Complex”)
violated the Open Records Act (“the Act”) when it denied an inmate’s
request to inspect records without citing an exception authorizing its
denial. However, the Complex did not violate the Act by refusing to
email records to the records custodian of the correctional facility where
the requester is currently incarcerated for his in-person inspection. The
requester may resubmit his request by requesting to receive copies of
the records by mail and prepaying the applicable fees.
Open Records Decision
Inmate Kyle Thompson (“Appellant”) submitted a request to the Complex to
inspect “all grievances [he] filed at [the Complex] during May 17, 2022 through
August 17, 2023.” The Appellant did not request to obtain copies of such records, but
rather, asked the Complex to provide them “though email again.”1 In a timely
response, the Complex denied the Appellant’s request because “inspections are only
available at the institution” and he is currently incarcerated at a different facility,
which “prevents [him] from being able to inspect the records at” the Complex.
However, the Complex’s response cited no exception to the Act or any other authority
in support of its denial. The Complex advised the Appellant to submit another request
if he wanted copies of the requested records. The Appellant then initiated this appeal,
1
Thus, on its face, the request appears to be seeking copies of public records by email. However, the
Appellant did not provide the Complex with an email address where it could send the records.
Moreover, on appeal, the Appellant clarifies that he wants the Complex to email the records to the
official custodian of records at the Luther Luckett Correctional Complex so he may view the records
on the official custodian’s computer and select the specific pages he wants to copy and retain.claiming the Complex violated the Act when it did not cite “applicable law” to support
its denial.
When an agency receives a request under the Act, it “shall determine within
five (5) [business] days . . . after the receipt of any such request whether to comply
with the request and shall notify in writing the person making the request, within
the five (5) day period, of its decision.” KRS 61.880(1). If an agency denies in whole or
in part the inspection of any record, its response must include “a statement of the
specific exception authorizing the withholding of the record and a brief explanation
of how the exception applies to the record withheld.” Id. A public agency’s response
denying a request cannot be “limited and perfunctory.” Edmondson v. Alig, 926
S.W.2d 856, 858 (Ky. App. 1996). Here, the Complex’s response did not cite any
exception to the Act, or any other authority, to support its denial. Rather, it stated
only that it was “under no obligation to send the records to” Luther Luckett
Correctional Complex (“LLCC”), where the Appellant is currently incarcerated.
However, the Complex noted the Appellant could resubmit his request and ask the
Complex to mail copies to him at LLCC. Because the Complex’s “limited and
perfunctory” response cited no exception to the Act or other any authority to support
its denial, it failed to comply with KRS 61.880(1).
However, the Complex is correct that the Act does not require it to email the
requested records to the records custodian of a different institution to facilitate the
Appellant’s in-person inspection of the records. KRS 61.872(3) provides two methods
for a resident of the Commonwealth to exercise his right of inspection. First, under
KRS 61.872(3)(a), a resident may inspect the public records “[d]uring the regular
office hours of the public agency.” Second, a resident may inspect records “[b]y
receiving copies of the public records from the public agency through the mail.”
KRS 61.872(3)(b). If a resident elects to receive copies by mail, the public agency may
demand prepayment of the associated copying and postage costs. Id.
Here, the Appellant is unable to exercise his right to in-person inspection of
the records at the Complex because he is incarcerated at a different institution, and
therefore, he cannot travel to the Complex during its normal business hours. As such,
the only method of inspection available to him is to receive copies of the requested
records by mail. KRS 61.872(3)(b). Moreover, on appeal, the Complex argues its
denial was proper because “[a]n inmate incarcerated in a prison is subject to the rules
and conditions of his confinement and not entitled to inspect records that are not
located at his prison.” The Complex cited several of the Office’s previous opinions
supporting its claim that an inmate’s right to inspect records in person is curtaileddue to the status of his confinement.2 Thus, while the Complex is correct that the
Appellant has no right under the Act to demand records be sent to another public
agency to facilitate his in-person inspection, the Complex’s initial response should
have provided the Appellant with at least some of the legal authority it has provided
on appeal. As a result, the Complex’s deficient response violated the Act because it
cited no exception or other authority in support of its denial. But the Act does not
require the Complex to email the requested records to the records custodian at
LLCC.3
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
2
The statutory right of a person to inspect records is restricted when he is confined to a correctional
facility. See, e.g., 15-ORD-006; 15-ORD-005; 12-ORD-082; 05-ORD-080; 95-ORD-105. While “all
persons have the same standing to inspect and receive copies of public records, and are subject to the
same obligations for receipt thereof,” an inmate’s freedom of movement may be restricted by the
correctional facility. 95-ORD-105; see also 92-ORD-1136; OAG 91-129; OAG 89-86; OAG 82-394; OAG
80-641; OAG 79-582; OAG 79-546. As such, the Office has also previously found that “an inmate must
accept the necessary consequences of his confinement, including policies relative to application for,
and receipt of, public records.” 95-ORD-105.
3
The Appellant also claims he is entitled to the requested records under KRS 61.884 because the
records make a specific reference to him. However, while KRS 61.884 permits a person to inspect
records “in which he is mentioned by name,” it does not specify the procedure by which a person must
request records that mention him. Rather, as explained above, a person may only inspect records in
person at the public agency or by receiving copies in the mail. KRS 61.872(3). Similarly, the Appellant’s
reliance on KRS 61.872(1) and KRS 61.872(2)(a) is also misplaced because those provisions state only
that a resident has a right to inspect records, and do not provide the method by which he can exercise
that right. Rather, KRS 61.872(3) establishes the two ways a person may exercise the right of
inspection: in person at the public agency where the records are maintained, or receiving copies in the
mail. Because of the nature of the Appellant’s confinement, he cannot travel to the Complex, and thus,
he has no choice but initiate his right of inspection under KRS 61.872(3)(b) and receive copies in the
mail after paying the associated copying and mailing costs.#404
Distributed to:
Kyle Thompson #248317
Amy V. Barker
Lydia C. Kendrick
Ann Smith