Opinion
Opinion By: Albert B. Chandler III, Attorney General; Gerard R. Gerhard, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary violated the Kentucky's Open Records Act in its disposition of the requests of Hargus Wayne Gabbard: (1) for a copy of a tape showing a fight he was in on April 24, 2003, and, (2) that a copy such videotape be sent to his lawyer.
As explained below, the Kentucky State Penitentiary cited recognized bases for denying Mr. Gabbard's requests and, therefore, its actions were in accord with the Open Records Act.
By request dated May 2, 2003, Mr. Gabbard requested a copy of a tape showing a fight he was in on April 24, 2003. Additionally, by request dated May 13, 2003, Mr. Gabbard asked that a copy of the videotape be sent to his lawyer.
Lt. Joel Dunlap, on behalf of the Kentucky State Penitentiary (KSP), responded to Mr. Gabbard's requests. Citing KRS 61.872(3), and 95-ORD-105, Lt. Dunlap explained that, given Mr. Gabbard's segregated housing, he (Gabbard) could not conduct an on-site inspection [of the tape] , and that KSP was not under an obligation to provide the record requested at the requester's cell, to arrange an escort to enable inspection, or to send such record to a third party.
Inspection of a record is a condition precedent to one obtaining a copy of a public record from a public agency under the facts involved here. See KRS 61.874. As explained by the Penitentiary's representative, where, because of incarceration, the requester cannot inspect a record (e.g., during the regular office hours of the agency, KRS 61.872(3)), the agency may deny a copy thereof. KSP's representative also explained that the agency is not required to furnish a record to a third party. Accordingly, it appears the Penitentiary acted in accordance with the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an 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 proceedings.
Hargus Wayne Gabbard # 125715P. O. Box 5128Eddyville, Kentucky 42038-5128
Tom SimpsonDeputy Warden of ProgramsP. O. Box 5128Eddyville, Kentucky 42038-5128
Emily DennisDepartment of CorrectionsOffice of General CounselP. O. Box 2400Frankfort, Kentucky 40602-2400