Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The sole question presented in this appeal is whether Western Kentucky Correctional Complex violated the Open Records Act in denying inmate James Whisman's January 5, 2010, request for a copy of his "phone records and recordings for the period of August [1], 2009, through October [31], 2009," and his January 7, 2010, request, in which Mr. Whisman asked to inspect said records, arguing that, contrary to WKCC's denial based on KRS 61.872(3) and 03-ORD-152, the circumstances of his incarceration do not prohibit him "from listening to, or watching a video or cassette tape regarding legal matters." Because this appeal presents no reason to depart from governing precedents, including 03-ORD-152, upon which WKCC also relied in responding to Mr. Whisman's appeal, and 05-ORD-080, this office affirms the denial of Mr. Whisman's request(s); a copy of each decision is attached hereto and incorporated by reference.
By virtue of his confinement in the segregation unit of WKCC, Mr. Whisman is currently precluded from exercising his right of inspection. As the Attorney General has consistently recognized, an inmate housed 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. 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. Whisman "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.
Although correctional facilities are not authorized to adopt and implement policies which unreasonably delay inmate access, the Attorney General has consistently upheld the policy adopted by the Department of Corrections relative to inmates housed in disciplinary segregation. 95-ORD-105; 03-ORD-152; 05-ORD-080. As in 03-ORD-152, this office concludes:
Inspection of a record is a condition precedent to one obtaining a copy of a public record from a public agency under the facts involved here. See KRS 61.874. As explained by [WKCC]'s representative, where, because of incarceration, the requester cannot inspect a record (e.g., during the regular office hours of the agency, KRS 61.872(3)), the agency may deny [a request for] a copy thereof. [WKCC]'s representative also explained that the agency is not required to furnish a record to a third party. Accordingly, it appears [that WKCC] acted in accordance with the Open Records Act.
Id., p. 2.
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.
James Whisman, # 164423Klaytor BurdenAmy V. Barker