Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Blackburn Correctional Complex violated the Open Records Act in failing to respond to Timothy J. Lewis' May 13, 2003 request for a copy of an earlier open records request concerning access to a tape of his April 7, 2004 adjustment hearing and further whether BCC violated the Act in denying Mr. Lewis access to the adjustment tape on the basis that he had insufficient funds in his inmate account to pay for the tape. For the reasons that follow, we conclude the actions of BCC did not violate the Act.
In his letter of appeal, dated July 21, 2003, Mr. Lewis indicated that BCC had yet to respond to his request.
After receipt of notification of the appeal and a copy of Mr. Lewis' letter of appeal, Emily Dennis, Staff Attorney, Department of Corrections, by letter dated June 9, 2004, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised:
Upon receipt of this appeal, I contacted Betty Ann Walker, the designated open records coordinator for BBC. An "open records coordinator" is the individual designated by the Warden at each state correctional institution to receive, date and forward an open records request to the appropriate custodian for processing. Pursuant to CPP 6.1, VI.B.2., an inmate may make an open records request at the institution where he (or she) is housed by submitting the request by institutional mail to the individual designated as open records coordinator. Ms. Walker has no record of having received a request from BCC inmate Timothy J. Lewis, # 155032, on 5/13/2004 or within the week following that date.
In his 5/21/2004 letter to the Office of [the] Attorney General, Mr. Lewis states that, on 5/13/2004, he sent the open records request to the "records department thru the institutional mail as required, and the records office has refused to respond." In review of the appeal, however, it is unclear whether Mr. Lewis actually sent his request to the BCC open records coordinator. There are several records departments, such as medical, personnel, and offender information, but only one designated open records coordinator in an adult correctional facility under jurisdiction of the Department of Corrections. Since Betty Ann Walker, the designated open records coordinator for BCC, has no record of receiving the request Mr. Lewis alleges to have made, his claim that the BBC record department has violated the open records act by failing to respond to his request is premature. Pursuant to KRS 61.872(2) and CPP 6.1, Mr. Lewis must submit his written request to the BCC's open records coordinator - Betty Ann Walker - to provide BCC an opportunity to respond to his request in compliance with Kentucky open records law.
Mr. Lewis further alleges in his 5/21/2004 letter to the Attorney General that BCC adjustment officer Claude Waldridge improperly denied him a copy of tapes of an adjustment hearing on the basis that Mr. Lewis had insufficient funds to pay for the copy. The Department of Corrections denies all allegations by Mr. Lewis that Mr. Waldridge violated the Open Records Act with respect to the 4/7/2004 request, for which Waldridge issued an interim response on 4/14/2004, and final response on 4/19/2004. In addition, the Department respectfully submits that consideration of an appeal of BCC's 4/19/2004 denial of Mr. Lewis's request dated 4/7/2004 is time-barred.
?
Mr. Lewis should resubmit an open records request at BCC for a copy of the tape or tapes of adjustment committee hearings he seeks at such time he has sufficient funds in his inmate account to cover the cost. Alternatively, he may request to inspect (in this case, listen) to the tapes. There simply is no basis for his conclusion that the records officer is ignoring or otherwise making untruthful statements to prevent him from accessing the hearing tapes. If you have any questions or need further explanation, please do not hesitate to contact me.
Ms. Dennis' letter to this office indicates that a copy of her response was sent to Mr. Lewis.
We are asked to determine whether the actions of the BCC violated the Open Records Act. For the reasons that follow, we conclude that the actions of BCC did not constitute a violation of the Act.
First, we address Mr. Lewis' contention that the agency failed to respond to his May 13, 2004 request. In her response, Ms. Dennis stated that the open records coordinator at BCC had advised that she had no record of receiving the request from Mr. Lewis. In support of its position, Ms. Dennis attached an affidavit by Ms. Walker, the open records coordinator, stating this fact and a copy of the "Open Records Request Log" at BCC, dating from May 5 to June 3, 2004 that show no such request from Mr. Lewis. We have no reason to doubt the agency's assertion that it had not received the request. Obviously, an agency cannot respond to a request it does not receive. Accordingly, we find no violation as to this issue.
Next, we address the substantive issue in this appeal, i.e., BCC's requirement of prepayment of copying fees prior to providing the copy of the tape. Under the Open Records Act, a correctional facility may properly require prepayment for copies of public records that are requested by inmates. KRS 61.874(1); 98-ORD-157. We conclude that BCC's actions requiring prepayment before providing Mr. Lewis with a copy of the tape did not violate the Open Records Act. Accordingly, Mr. Lewis, if he now has sufficient funds in his inmate account to pay for the requested record, and has not already done so, should make the necessary arrangements to send payment along with his request to the BCC open records coordinator in order that he may receive a copy of the requested tape. In the absence of sufficient funds, the Department has indicated that he may listen to the tape at no charge.
Because of the convoluted procedural history in this appeal, we do not address the issue of whether the appeal is time-barred under KRS 197.025(3).
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.
Timothy J. Lewis, # 155032Blackburn Correctional Complex3111 Spurr RoadLexington, KY 40511
Betty Ann WalkerOpen Records Coordinator Blackburn Correctional Complex3111 Spurr RoadLexington, KY 40511
Emily DennisJustice and Public Safety CabinetOffice of General Counsel2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400