Request By:
Eric Cunningham, # 151116
Amy V. Barker
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in the context of an Open Records Appeal, and the Attorney General being sufficiently advised, this office finds that the Kentucky Parole Board did not violate the Open Records Act in declining to provide Eric Cunningham with an opportunity for on-site inspection of his preliminary hearing tape as he is currently incarcerated at Roederer Correctional Complex and the record is maintained "at a government office building in Frankfort and not where he was incarcerated" at the time of his request [Fayette County Detention Center] as the Board correctly argued on appeal. Because the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Cunningham's July 9, 2009, handwritten request, which the Board found no record of having received following a search, this office is unable to conclusively resolve the related factual discrepancy, and therefore finds no violation in this regard.
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 restricted; accordingly, an inmate such as Mr. Cunningham "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. For example, by virtue of his confinement an inmate "may be foreclosed from exercising the right to inspect public records prior to obtaining copies." 05-ORD-080, p. 4. In our view, the reasoning found in 08-ORD-130 and 05-ORD-080 is controlling here; a copy of each decision is attached hereto and incorporated by reference. "Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined." 95-ORD-105, p. 3; 05-ORD-080. Consistent with governing precedents, the Attorney General finds no error in the Board's position that "Mr. Cunningham is not entitled to inspect records at the Parole Board offices when he is incarcerated. " In requiring advance payment of the prescribed copying fee and postage before mailing a copy of the record to Mr. Cunningham, the Board is merely complying with KRS 61.874(1).
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.