Request By:
James Harrison, # 095435
Marc Abelove
Emily Dennis
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory violated the Open Records Act in the disposition of multiple requests for public records submitted by James Nick Harrison. For the reasons that follow, we affirm KSR's disposition of the single open records request properly presented to this office on appeal, namely, his January 7, 2008, request for:
. one copy of detention order date[d] 12/17/07 signed or approved by warden;
. one copy of inventoried property form signed by [Mr. Harrison] dated 12/17/07;
. one copy of each witness list submitted to court call during the month of December 2007 and any disposition taken on same should be at least two in the adjustment officer's file [sic].
Mr. Harrison did not submit copies of any other open records requests, and we are foreclosed from reviewing any issues that arise from KSR's disposition of these requests by operation of KRS 61.880(2)(a) and 40 KAR 1:030 Section 1. 1
Mr. Harrison submitted his January 7 request on Finance and Administrative Cabinet Form B-010-1. It contains a description of the records sought, his signature, his name printed legibly, his inmate number, and his housing assignment. The lower portion of Form B-010-1 is reserved for agency "disposition," and reflects that on January 14, 2007, KSR open records coordinator Marc Abelove responded to Mr. Harrison's request by directing him to "See Attached." Mr. Harrison did not provide this office with the referenced attachment, but argued in his letter of appeal that KSR's disposition of this request violated, or otherwise subverted the intent of, the Open Records Act by requiring him to use "a certain type form," and by requiring him "to submit[] a money authorization sheet before [he] can obtain the requested document."
In supplemental correspondence directed to this office following commencement of Mr. Harrison's appeal, KSR advised that the agency "has no record of the request to inspect records that Mr. Harrison allegedly made." KSR noted that he instead "submitted a request for copies only," to which Mr. Abelove properly responded:
In accordance with KRS 61.874 this office is required to request the payment for copies in advance. In order to process your requests you will need to contact your caseworker to prepare an " Inmate Money Transfer Authorization " to submit with the open records request. You must sign both forms and your caseworker the transfer authorization form ." 2
KSR further advised that along with his January 7 request for copies Mr. Harrison submitted an unsigned "Inmate Money Transfer Authorization. "
In support of these challenged practices, KSR cites KRS 61.874(1), authorizing public agencies to require a written request and advance payment of fees for copying, and, if applicable, postage. Additionally, KSR cites Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985) and OAG 91-210 for the proposition that indigent inmates are not entitled to a waiver of reasonable copying fees provided for at KRS 61.874(3). Finally, KSR cites Corrections Policy and Procedure (CPP) 6.1, promulgated into regulation at 501 KAR 6:020 Section 1, which includes the requirement that an inmate submit an Authorization to Use Inmate Account Form with his or her open records request. Relying on 06-ORD-078 and 04-ORD-004, KSR maintains that the Attorney General has generally "upheld . . . a prison's denial of open records requests due to an inmate's failure to comply with the policies and procedures relating to inmate open records requests . . . ." With reference to the particular facts of this appeal, KSR asserts:
Mr. Harrison has submitted an open records request for inspection of records to [the Attorney General's] office on appeal that KSR never received from him. The alleged denial -- which was proper given the request that was in fact received -- was not attached to the request letter.
In closing, KSR expressly repudiates Mr. Harrison's contention that the facility requires an inmate to request copies of records prior to allowing inspection of the records, and concludes that the response to his January 7 request was entirely correct given the fact that he failed to submit the requisite signed inmate money transfer authorization. We agree.
In an open records decision issued in 1995, this office observed:
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.
95-ORD-105, p. 3. Where those policies do not interfere, or threaten to interfere, with an inmate's statutory right of access to nonexempt public records, we accept without cavil the application of these policies to the inmate's open records request. 3
KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected.
Although this office has generally disapproved the required use by a public agency of a preprinted request form, our position was largely premised on the agency's insistence that the requester furnish nonstatutorily required information, such as the reason for the request. See, e.g., 03-ORD-086 (Louisville Metro Inspections, Permits, and Licenses violated the Open Records Act by requiring the use of a preprinted open records request form that included a section in which the requester was asked to state the reason for the request). KSR's request form is prescribed for use by state agencies at 200 KAR 1:020 Section 5, and contains a section in which the requester is asked to provide his or her address. KSR requires the submission of inmate identification information and housing assignment to facilitate discharge of the institutional records officers' duties. The Attorney General has approved this practice on a number of occasions, and Mr. Harrison advances no argument that would warrant us in departing from this position. See, e.g., 04-ORD-004; 05-ORD-228; 06-ORD-078. Because this policy does not interfere, or threaten to interfere, with Mr. Harrison's statutory right of access to nonexempt public records, and is, in fact, consonant with provisions of the Open Records Act, we find that it does not violate the Act.
Nor, in our view, does the corrections policy requiring inmates who request copies of nonexempt public records to submit a signed inmate money transfer authorization with the request. KRS 61.874(1) provides that "[w]hen copies are requested, the custodian may require a written request and advance payment of the prescribed fee." This provision echoes KRS 61.872(3)(b) which provides, "If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing." The courts and this office have, on a number of occasions, recognized the propriety of a corrections policy requiring prepayment for copies. For example, in Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985) the Kentucky Court of Appeals held that an inmate is entitled to a copy of a record under the Open Records Act only after he or she has complied with the reasonable copying charge applicable to all requesters. At page 3 of 95-ORD-105, the Attorney General determined that it is "entirely proper for [a correctional] facility to require prepayment, and to enforce its standard policy relative to assessment of charges to inmate accounts . . . ." In a later decision, we recognized that although "this prepayment policy might work a hardship on inmates, " the policy is "consistent with the Open Records Act and the rule announced in Friend v. Rees , [above]." 97-ORD-131, p. 3. Because this policy does not interfere, or threaten to interfere with Mr. Harrison's statutory right of access to nonexempt public records, and is, again, consonant with provisions of the Open Records Act, we find that it does not violate the Act.
The January 7, 2008, open records application that reached KSR open records coordinator Marc Abelove clearly requested copies of responsive records rather than inspection of those records. The term "copy" appears no less than four times in the application, and the application was accompanied by an Authorization to Use Inmate Account form, albeit unsigned, evidencing Mr. Harrison's desire to obtain copies. The term "Inspect Only" mysteriously appears only in the request that Mr. Harrison transmitted to this office for purposes of perfecting his open records appeal. We will not expend any effort attempting to resolve this mystery. Suffice it to say that if, in fact, Mr. Harrison wishes to conduct an onsite inspection of nonexempt records, KSR stands ready to permit him to do so (assuming his status within the facility does not preclude him from doing so). See, e.g., 00-ORD-225, p. 4 (holding that "an inmate who is disciplined for an infraction by being placed in segregation forfeits not only his ability to move about within the correctional facility, but the ability to exercise his right of inspection under the Act"). We find no error in KSR's disposition of Mr. Harrison's January 7, 2008, open records 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 On appeal, Mr. Harrison complains that he could not transmit copies of his other requests to the Attorney General because those requests "were in the possession of the agency." Apparently, he did not retain copies of those requests, but expected the facility to provide the Attorney General with copies upon commencement of his appeal. It was not incumbent on the facility to do so. It was, instead, incumbent on Mr. Harrison to obtain copies of the requests before initiating an appeal. Because he had not done so, any issues relating to the requests were not ripe for review by this office.
2 This, presumably, is the attachment referenced in Mr. Abelove's written disposition of Mr. Harrison's request which Mr. Harrison did not forward to this office.
3 We cannot, on the other hand, approve policies adopted and implemented by correctional facilities "which unreasonably delay access." 95-ORD-105, p. 3; accord, 08-ORD-41 (Lee Adjustment Center subverted the intent of the Open Records Act by engaging in practices that resulted in an unreasonable delay in inmate access to requested record).