Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northpoint Training Center ("NTC") violated the Kentucky Open Records Act in denying Willie J. Stewart's request for a copy of a legal mail log on April 6, 2009. Because the Open Records Act does not exempt indigent requesters from the requirement for payment of copying fees codified at KRS 61.874(1), this office affirms the disposition of Mr. Stewart's request in accordance with governing authorities.
Mr. Stewart's original request reads as follows:
On 4/3/09 C.O. Sheene showed me the Legal Log where he had mailed out my Appeals to Jack Conway Attor[ne]y General on March 20, 2009. C.O. Sheene stated that he could not give the Petitioner (me) Stewart a copy of the Log with his named [sic] on it only so that he may att[a]ch a copy of it to his Notice of Appeal. This is directly in violation of NTC 14-01-01, CPP 14.4, 16-01-01 Mail Regulation according retention log also CPP16.2 I'm asking a copy of that Legal with my name on it only for court.
The record is unclear as to whether any written response was made. Mr. Stewart, however, initiated this appeal the same day by mailing a copy of his request to this office with a cover letter, in which he described two other pending open records appeals and added:
I'm respectfully asking for a Status Report on these two Appeals that were Mail to your Office on March 20, 2009. It has been 12 working days and I have not received no Notice from your Office as of April 6, 2009.
In NTC's response to the appeal, Amy V. Barker, Assistant General Counsel, recites: "In his letter of appeal ? Mr. Stewart complains that he was allowed to inspect the legal log entry showing that appeals had been mailed to the Attorney General's Office, but was not allowed to have a free copy." Ms. Barker argues that indigent inmates are not entitled to free copies of records under the decisions of this office, and further states that an agency's compliance with internal policies is not properly before the Attorney General in an open records appeal.
In our view, the reasoning contained in 08-ORD-044, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. The courts and this office have recognized the propriety of a Department of Corrections policy requiring advance payment of copying fees. In Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that an inmate is entitled to receive a copy of a record only after "complying with the reasonable charge of reproduction. " Accordingly, the Attorney General subsequently 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 ...." 95-ORD-105. While acknowledging that "this prepayment policy might work a hardship on inmates, " this office has nevertheless upheld the policy as "entirely consistent with the Open Records Act and the rule announced in Friend v. Rees. " 97-ORD-131 (quoting 95-ORD-90, p. 2). In accordance with these precedents, NTC did not violate the Open Records Act in denying Mr. Stewart's request despite his inability to pay for the requested copy.
We additionally note that NTC's compliance with the internal agency and facility policies and procedures cited in Mr. Stewart's original request are not properly at issue in this open records appeal. "The Attorney General is not empowered to ? resolve non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17.
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.
Willie J. Stewart, # 093596Jennifer MaryeAmy V. Barker, Esq.