Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Penitentiary violated the Kentucky Open Records Act in denying the request of Joe A. Browder, Jr. to view the videotape that he "purchased from BCC [Blackburn Correctional Complex], which is being stored in KSP Library," and hear all of the audiotape recordings of his adjustment hearings from Eastern Kentucky Correctional Complex and the KSP; Mr. Browder noted that he is "not represented by any KSP legal aide, and no third party is authorized to inspect nor to receive requested information." Because Mr. Browder is currently assigned to the segregation housing unit of the KSP, he is prohibited from conducting an on-site inspection of the records prior to receiving copies as contemplated by KRS 61.872(3). Inasmuch as the Open Records Act does not obligate a correctional facility such as the KSP to bring the original record (s) to an inmate's cell for his inspection, provide a copy of a record(s) to a third party, or store the record(s) with an inmate's personal property until his release from segregation, the KSP properly denied Mr. Browder's request in accordance with prior decisions of this office. Until such time as Mr. Browder is released from segregation, he "must accept the necessary consequences of his confinement. " 95-ORD-105, p. 3.
In a timely written response, Deputy Warden Alan Brown denied Mr. Browder's request, advising that "KRS 61.872(3) permits a person to inspect public records not otherwise exempt from disclosure at a public agency's designated time and place [during the regular office hours of the public agency if not in a correctional setting]. Inspection of a record is a condition precedent to one obtaining a copy of the record. KRS 61.874, see also 03-ORD-152, 95-ORD-105." In support of the denial, Warden Brown further explained:
Your current segregation housing assignment prohibits you from moving freely about the facility; therefore you cannot conduct an on-site inspection in any institutional office. Institutional regulations prohibit possession of the requested audio or video cassette tape in the segregation unit. KSP is under no obligation to bring the original record to your cell for review, prepare you for and escort you for reviewing the record requested, or prepare a copy to be held in your property pending release from segregation. [The] Open Records [Act] also does not obligate KSP to provide a copy to a third party upon request.
However, please be advised that we will allow for your authorized legal aide to review the requested cassette/video tape (s) if you so desire. You state in your request that you do not have an assigned legal aide; if you wish to have a legal aide assigned to you please contact Duke Pettit, Program Director of such. If you wish to have the requested tape (s) that you state are in the legal office at this time provided for review by your legal aide, you must contact Duke Pettit, Program Director stating such.
By undated "Petition for Review under KRS 61.880" received in this office May 21, 2008, Mr. Browder initiated this appeal, reiterating that among the items requested is a videotape that belongs to him which he needs to review along with the requested audiotapes to prepare his Petition for Declaration of Rights.
Upon receiving notification of Mr. Browder's appeal from this office, Staff Attorney Leigh K. Meredith, Justice and Public Safety Cabinet, responded on behalf of the KSP, correctly noting that KRS 61.872(3) contemplates access to public records by either inspection or the receipt of copies. Citing KRS 61.874, 03-ORD-152, and 95-ORD-105, Ms. Meredith also correctly asserts that the Attorney General has recognized, "if the circumstances of a person's incarceration prohibit the person from inspecting a public record, a public agency may also properly deny" a request for a copy of the public record. As reiterated by Ms. Meredith, the Open Records Act "does not obligate a state prison to provide an audio or videocassette tape to a third party (such as a legal aide) or even store the audio or videocassette tape with an inmate's personal property pending the inmate's release from segregation. " Accordingly, Ms. Meredith argues that Deputy Warden Brown "properly denied Mr. Browder's request and even went beyond the statutory duty by offering to provide a legal aide and to allow a legal aide to view the records." Because Mr. Browder "has no basis for his claim that KSP violated the Open Records Act, " Deputy Warden Brown's response on behalf of the KSP should be upheld in her view; this office agrees based on governing precedents. 1
As the Attorney General has consistently recognized, an inmate in a correctional facility is uniquely situated with regard to exercising his rights under the Open Records Act. 95-ORD-105, p. 3; 05-ORD-080. See also 05-ORD-228. While "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof," the movements of an inmate within a facility are presumably restricted; accordingly, an inmate such as Mr. Browder "must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. " 95-ORD-105, p. 3; 05-ORD-080. In our view, 03-ORD-152 and 05-ORD-080 are directly on point; a copy of each decision is attached hereto and incorporated by reference.
Although correctional facilities are not authorized to adopt and implement policies which unreasonably delay inmate access, the Attorney General has upheld the policy adopted by the KSP relative to inmates housed in disciplinary segregation. 05-ORD-080; 98-ORD-157; 95-ORD-105; 03-ORD-152. Mr. Browder is entitled to "conduct an on-site inspection, subject to the facility's governing open records policies, after he is released from disciplinary segregation, or he may access the records by receipt of copies when there are sufficient funds in his inmate account to pay for those copies." 05-ORD-080, p. 5, citing 98-ORD-157, p. 4. Until then, he "must accept the necessary consequences of his confinement. " Id. Because the instant appeal presents no reason to depart from this line of decisions, the denial is affirmed. To its credit, the KSP exceeded its duty under the Open Records Act in responding to Mr. Browder's 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 In a reply dated June 9, 2008, Mr. Browder again challenged the position of the KSP; however, none of his claims alter the analysis or the outcome of this appeal.