Request By:
Kerry R. Porter, Sr., # 126590
Northpoint Training Center
P.O. Box 479, Dorm 6
Burgin, KY 40310Alicia Smiley
Public Information Officer
City of Louisville
Division of Police
633 Jefferson Street
Louisville, KY 40202-2786Stephanie Harris
Assistant Director of Law
City of Louisville
Room 200, City Hall
601 W Jefferson Street
Louisville, KY 40202-2771
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the response of the City of Louisville to the open records request of Kerry R. Porter, Sr. violated the Open Records Act.
By letter dated February 27, 2002, Mr. Porter made the following open records request to the City:
I would like to inspect the particular filed statement that contains the specific information taken from any witnesses that has alleged "seeing me obtain a shotgun. " Notwithstanding that statement of Marcus D. Pendergrast; I have that already."
By letter dated March 4, 2002, Alicia M. Smiley, Public Information Specialist, Division of Police, responding on behalf of the City, acknowledged receipt of Mr. Porter's letter on March 4, 2002 and advised him:
Please be advised that pursuant to KRS 61.872(4), a review of the homicide file for Jerome Camp did not locate any witness statements, other than Marcus D. Pendergrast, that refer to "seeing me obtain a shotgun. "
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD 134. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, the City's action in affirmatively advising Mr. Porter that it did not have the requested witness statements was consistent with the Open Records Act and prior decisions of this office and did not constitute a violation of the Act.
Mr. Porter also complains that that he is entitled to receive copies of the requested records by mail. As noted above, the City does not have the requested records. Moreover, in 95-ORD-105, this office discussed the issues of an inmate's entitlement to public records and the requirement of prepayment for copies of records prior to mailing the records. It is instructive to quote from that decision at some length:
An inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. Although, as we have recently observed, "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 movements within the facility are presumably restricted, and the manner in which he conducts his financial business dictated by the facility. 94-ORD-90, p. 2; see also, OAGs 79-546; 79-582; 80-641; 82-394; 89-86; 91-129; 92-ORD-1136. Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. This does not, however, authorize a correctional facility to adopt and implement records policies which unreasonably delay access.
. . .
[I]t is the opinion of this office that [a correctional facility] may properly require prepayment for copies of public records which are requested by inmates. KRS 61.872(3)(b) provides that public agencies must:
Additionally, KRS 61.874(1) provides:
These statutes contain no provision for waiver of the prepayment requirement for inmates. It is, in our view, entirely proper for the facility to require prepayment, and to enforce its standard policy relative to assessment of charges to inmate accounts, despite the delays this may entail. As noted, however, this holding should not be construed to authorize any delay other than that which is reasonably necessary to insure prepayment of copying charges.
Accordingly, it is the conclusion of this office that the City's actions in timely responding to Mr. Porter's request on the same day it was received, affirmatively advising him that the agency did not have the requested records, and its policy of requiring prepayment for records prior to mailing, were consistent with requirements of the Open Records Act and prior decisions of this office, and thus did not constitute a violation of the 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.