Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Lee Adjustment Center violated KRS 197.025(7) in failing to respond to Bryan Lafayette's December 22, 2009, request to inspect his medical records within five business days of submission of that request and whether Mr. Lafayette is therefore entitled to an award of monetary damages. The answer to the first question is no, and, even if the answer to the first question was yes, this office has no authority to impose penalties.
Mr. Lafayette complains that although he placed his written request in the facility mailbox located in LAC's South Dorm on December 22, the request was not retrieved from the central mail center until December 28 and date stamped accordingly. As a result of this "intentional" conduct, he continues, LAC did not afford him the opportunity to inspect the requested records for nearly two weeks. To remedy this violation, Mr. Lafayette proposes that he be provided with free copies of the records and that the Attorney General "adopt the mailbox rule used by the courts whereby the date legal documents are put in the prison mailbox constitutes the date filed."
LAC responds that mail is routinely transported from facility mailboxes to the central mail center where it is retrieved by the various operational units to which it is addressed and a date stamp applied on the date retrieved. Because the central mail center does not maintain a log reflecting the date on which Mr. Lafayette's request arrived, LAC "cannot confirm or disprove the date on which the request was allegedly mailed or the date on which the request reached the central mail center." Nevertheless, LAC asserts that the request was retrieved from the central mail center on December 28 and its response issued within the five business days, excluding Saturdays, Sundays, and legal holidays, authorized by KRS 197.025(7). Noting that Mr. Lafayette primarily objects to the failure of the records custodian to retrieve his request on the same date he placed it in the facility mailbox, LAC maintains that absent proof of "significant delay on the part of the facility mail system" or proof that "a custodian declined to collect mail from the central mail system so as to delay processing of records requests," no violation should be found. It is the agency's position that it does not "work a hardship or undermine the state's open records policy if it takes three business days for an inmate's request to pass through the institutional mail system and arrive at the records office." Because there is no evidence of intentional delay, and because it is widely recognized that the use of any mail system occasions delays, we agree.
This office has frequently 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 . . . Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records.
See, e.g., 95-ORD-105, p. 3. KRS 197.025(4) prohibits correctional facilities from accepting hand-delivered open records requests from inmates confined in the facilities, and Kentucky Corrections Policy and Procedure 6.1 requires inmates to use institutional mail or First Class mail to transmit their requests. 1 As noted, the use of either mail system frequently occasions delays. Because Mr. Lafayette stands in the same shoes as any other records requester in relation to transmission of a request by mail, he must accept the unfortunate realities of "snail mail. " 2 Experience teaches us that it is not uncommon for a letter posted in Frankfort and addressed to Lexington or Louisville to reach its destination as late as three to five days after posting. Agencies should not be saddled with a "mailbox" rule that requires the issuance of a final response before the request has reached them, and this office is neither empowered nor inclined to impose such a rule.
Having so concluded, we emphasize that intentional delays in the retrieval and processing of open records requests aimed at artificially extending agency response time violate both the letter and the spirit of the Open Records Act. KRS 61.880(1). Again, this office has regularly observed that "the procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 3. Where proof is presented of agency procrastination, this office will find a violation of KRS 61.880(1).
In the event proof of procrastination is presented, and a violation is found, this office will not exceed its statutory authority by ordering disclosure of free copies to the requester or imposing any other penalties. KRS 61.880(2) is abundantly clear in limiting our authority to "issu[ing] . . . a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." We therefore decline Mr. Lafayette's request that we require LAC to provide him with copies free of charge.
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.
Bryan Lafayette, # 281298-A-2Bobby MooreCole CarterAmy V. Barker
Footnotes
Footnotes
1 In Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008), the Kentucky Supreme Court held that a particular Corrections policy "provide[d] no relief to the DOC . . . because it purports to add a requirement not found in the statutes." The policy cited by LAC does not "amend, alter, enlarge, or limit the terms of the Act" but is, instead, supported by KRS 197.025(4) and is therefore valid.
2 The term " snail mail" refers to "the lag-time between dispatch of a letter and its receipt, versus the virtually instantaneous dispatch and delivery of its electronic equivalent email. " http://en.wikipedia.org/wiki/Snail_mail. TheOpen Records Act does not currently authorize the email transmission of open records requests by inmates or members of the public generally.
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