Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Fayette County Detention Center violated the Open Records Act in denying James Larson's requests to inspect various contracts maintained by the Detention Center. For the reasons that follow, we affirm the Detention Center's denial of Mr. Larson's request.
Between February 23, 2003 and March 1, 2003, Mr. Larson submitted three open records requests. 1 Those requests and the Detention Center's responses are summarized below:February 23:Request to inspect the contract between theDetention Center and Kellwell Food ServiceFebruary 24:Request denied due to insufficient funds ininmate account on advice of Lexington-FayetteUrban County Government Department ofLawFebruary 26:Renewed request to inspect contract betweenthe Detention Center and Kellwell FoodServiceFebruary 27:Request denied on advice of LFUCGDepartment of LawMarch 5:Supplemental denial from Assistant DirectorRandy Pridemore relating to February 26request and advising Mr. Larson that pursuantto KRS 197.025(2), 00-ORD-182, and 98-ORD-150,he is only permitted to inspect records thatpertain to him and include his nameMarch 1:Request to inspect contract authorizing thehousing of state prisoners at the DetentionCenterMarch 3:Request denied on the basis of KRS 197.025(2),00-ORD-182, and 98-ORD-150, and on the basisthat record requested did not pertain to him orinclude his name
Upon receipt of the Detention Center's final denial, Mr. Larson initiated this appeal questioning the applicability of KRS 197.025(2) to a local facility and the sufficiency of the Detention Center's responses.
In supplemental correspondence directed to this office following commencement of Mr. Larson's appeal, LFUCG corporate counsel, Michael R. Sanner, elaborated on the Detention Center's position. He maintained that KRS 197.025(2) does, in fact, apply to the Detention Center observing:
KRS 197.025 is entitled "Restrictions on Access to Inmate and Facility Records -- Appeal -- Procedure, Restriction on Access to Policies and Procedures." KRS 197.025(2) states "KRS 61.872 to the contrary notwithstanding, the Department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department unless the request is for a record that pertains to that individual."
In support, he cited 95-ORD-121, in which the Attorney General "recognized that KRS 197.025 applied to a county jail, " and 00-ORD-153, in which the Attorney General held that KRS 197.025(2) applied to a request submitted by an inmate in the Fayette County Detention Center. 2 Additionally, Mr. Sanner noted that KRS 61.874(1), as construed in prior decisions of this office, authorized the Detention Center's denial of Mr. Larson's request based on the insufficiency of funds in his inmate account and his consequent inability to prepay for copies of the records requested. In general, we agree with this analysis.
As amended, KRS 197.025(2) now provides:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.
By its express terms, this provision applies to requests for records submitted by inmates "confined in a jail or any facility . . . under the jurisdiction of the department [of Corrections]." The statute provides that "the department shall not be required to comply . . ." with such requests unless the record requested specifically references the requester. Although the statute does not specifically provide that jails or facilities under the Department's jurisdiction are not required to comply with such requests, we are unwilling to construe that statute so strictly that it yields the absurd result that an inmate can obtain from a jail those records which he cannot obtain from the Department. Given the broad oversight role statutorily assigned to the Department relative to jails, 3 and the common interest of these agencies in avoiding disclosure of records that implicate security concerns and in stemming the swelling tide of frivolous inmate requests, we find that an interpretation of KRS 197.025(2) that does not include jails is legally unsupportable in light of the underlying purpose of KRS 197.025 taken as a whole.
With regard to the 2002 amendment to KRS 197.025(2), this office recently observed:
That provision previously authorized correctional facilities to withhold records from an inmate unless the records "pertain [ed] to that [inmate] ."
The language of KRS 197.025(2) has since been narrowed to require that the records requested by the inmate "contain a specific reference to the [requesting inmate] ." (Emphasis added.) The net effect of this amendment has been to further curtail the inmate's right of access to records maintained by the Department of Corrections and correctional facilities . . . .
03-ORD-73, p 3; see also 03-ORD-003. Mr. Larson's appeal provides the occasion for the Attorney General to extend the holding in 00-ORD-73 to records maintained by jails. As in that decision, we find that under no construction of KRS 197.025(2), as amended, can it be said that the requested contracts "contain a specific reference to [Mr. Larson]." Accordingly, we find that the Fayette County Detention Center properly denied his request for contracts, notwithstanding his tenuous claim that they relate to him, because the contracts do not specifically reference him. 4
Assuming arguendo that KRS 197.025(2) did not provide sufficient authority for the Detention Center's position, we find that Mr. Sanner correctly asserted that Mr. Larson's request was properly denied because he lacked sufficient funds in his inmate account to pay for copies of the requested contracts. On this issue, the Attorney General has observed:
Although an inmate enjoys the same rights as any other requester under the Open Record Act, he "is uniquely situated with respect to the exercise of [these] rights." 95-ORD-105, p. 5. Thus, at page 5 of 95-ORD-105, we stated that "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof," but "an inmate's movements within [a correctional] facility are presumably restricted, and the manner in which he conducts his financial business dictated by the facility." 95-ORD-105, citing 94-ORD-90, p. 2. We held that pursuant to KRS 61.872(3)(b) and KRS 61.874(1), a correctional facility may properly require prepayment for copies of public records that are requested by inmates under the Open Records Act since the Act "contains no waiver of the prepayment requirements for inmates. " Id. at 6.
00-ORD-225, p. 3. A copy of 00-ORD-225 is attached hereto and incorporated by reference. If Mr. Larson is subject to restrictions on the exercise of his right of on-site inspection, and if he is unable to pay for copies, the Fayette County Detention Center cannot be said to have violated the Open Records Act in refusing to honor his request.
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.
Footnotes
Footnotes
1 Mr. Larson submitted two requests on February 23. In the first of these requests, he asked to inspect the federal contract relating to the housing of federal prisoners. Mr. Larson did not provide this office with a copy of that request which was apparently honored and is therefore not in dispute.
2 Mr. Sanner acknowledged that the Detention Center "inadvertently waived its exemption in KRS 197.025(2) with regard to Mr. Larson's request for the federal housing contract, but did not waive the exemption on separate requests for the state housing and food contracts."
3 See, for example, KRS 196.030(1)(e) (vesting the Department with the duty to administer and enforce KRS Chapter 441 "relating to the development and enforcement of jail standards; training of jailers and jail personnel, and jail planning and construction"); KRS 441.055 (vesting the Department with the duty to adopt and revise jail standards relating to health and safety, fire safety, operations, recordkeeping, administration, training, treatment of prisoners, medical care, jail equipment and construction, and standards review process); and KRS 441.064 (vesting the Department with the duty to employ jail consultants, inspect jails, and notify jailers of deficiencies).
4 The Detention Center was not estopped from raising KRS 197.025(2) in response to Mr. Larson's subsequent requests inasmuch as the language of that provision is permissive rather than mandatory. See 02-ORD-194 (enclosed).