Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Kentucky State Reformatory violated the Kentucky Open Records Act in the disposition of inmate Buster Chandler's June 8, 2011, requests for the "Post-log sheets with the name's [sic] of the white women and black officer whom [sic] worked Dorm 8 on Feb[.] 8, 2011," which contain his name because the officers conducted a search of his cell and confiscated some clothing, and the "first name of Lt. Morgan [sic] Unit-C supervisor due to the fact that he was call [sic] when the white woman and black office [sic] search[ed] my cell. " Offender Information Specialist Marc Abelove advised Mr. Chandler, by identical responses, that he needed to contact his caseworker "to prepare an 'Inmate Money Transfer Authorization'" per KRS 61.874 and CPP 6.1VI(B). 1 (Original emphasis.) Based upon the following, this office affirms the disposition of Mr. Chandler's request in accordance with applicable statutes, existing case law, and prior decisions of this office.
Upon receiving notification of Mr. Chandler's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR as follows:
KSR requires advance payment for copies of records as allowed pursuant to KRS 61.874(1). See 08-ORD-096; 08-ORD-044; OAG 91-210, following Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985). The Attorney General has stated:
09-ORD-088, pp. 2-3. Requiring advance payment for copies does not violate the Open Records Act.
This office agrees. In addressing the unique issues surrounding access to public records in this context, the Attorney General has long recognized:
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.
95-ORD-105, p. 3, citing 94-ORD-90, p. 2. See also 92-ORD-1136; OAG 89-86; OAG 79-582; OAG 79-546.
When copies of public records are requested, "the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." KRS 61.874(1). Neither this provision nor the remainder of the Open Records Act contains a waiver of this requirement for inmates. Accordingly, the Attorney General has previously held that correctional facilities like KSR are permitted to require prepayment of copying fees, and enforce standard policies regarding assessment of charges against inmate accounts, despite the delay in processing the request which might inevitably result. 95-ORD-105, p. 3. However, this holding has not been construed to authorize any type of delay beyond that which is reasonably necessary to ensure prepayment of copying charges. Id.
In 04-ORD-004, this office expressly upheld the validity of CPP 6.1. More specifically, the Attorney General affirmed the denial by Eastern Kentucky Correctional Complex of the inmate request in question due to the failure of the inmate to provide the inmate identification information required by CPP 6.1, holding that the denial was "proper and consistent with its policies and procedures relating to inmate open records requests," as well as KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 04-ORD-004, p. 3. Likewise, in 08-ORD-044, as KSR correctly argued on appeal, this office specifically upheld the provision of CPP 6.1 implicated here ((B)(4)); accordingly, the reasoning of that decision is controlling. A copy of 08-ORD-044 is attached hereto and incorporated by reference. See 05-ORD-228; 06-ORD-078; 08-ORD-157; 09-ORD-069. Inasmuch as the challenged policy "does not interfere, or threaten to interfere, with [Mr. Chandler's] statutory right of access to nonexempt public records, " and is consistent with provisions of the Open Records Act, this office finds that KSR did not violate the Act by requiring compliance with it and trusts that any remaining issues will be resolved when KSR provides Mr. Chandler with the requested copies upon receipt of the necessary documentation. 2 08-ORD-044, pp. 4-5.
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.
Distributed to:
Buster ChandlerMarc AbeloveAmy V. Barker
Footnotes
Footnotes
1 Mr. Abelove mistakenly identified the record(s) in dispute as a "time card" ; however, on appeal KSR acknowledged that both responses "inadvertently contained a reference to a time card that did not pertain to Mr. Chandler's request. This did not change the need for the authorization form to pay for copies of records."
2 Ms. Barker noted in closing that prior to releasing the log, KSR will need to redact information the disclosure of which "would present a security risk pursuant to KRS 61.878(1)(l) and 197.025(1) and personal information that would be an invasion of privacy pursuant to KRS 61.878(1)(a)." In 09-ORD-047, this office affirmed the denial by Northpoint Training Center of a request for a "Security Activity Log, " which appears to be the same kind of log in dispute here, on the basis of KRS 197.025(1). A copy of that decision is attached hereto and incorporated by reference. Although the requested log apparently contains a "specific reference" to Mr. Chandler, which renders KRS 197.025(2) inapplicable, the analysis contained therein is otherwise controlling and supports redaction of some information contained in the log on the basis of KRS 197.025(1) inasmuch as the withholding of such a log in its entirety has been upheld. Analysis of the agency's prospective invocation of KRS 61.878(1)(a) is therefore both premature and unnecessary.