Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Avren Scott initiated this undated appeal challenging the disposition by Kentucky State Reformatory of his June 5, 2014, request to inspect his inmate file. In a timely written response, KSR cited KRS 61.872(1) and explained to Mr. Scott that his request was being denied "based upon your current housing status in CPTU C Wing, which does not permit you access to these facilities. When you are moved out of C Wing, you may resubmit your request in order to schedule an inspection. "
Upon receiving notification of Mr. Scott's appeal from this office, Assistant General Counsel Amy V. Barker responded on behalf of KSR. Ms. Barker advised that "Inmate Scott is currently in a segregation housing assignment which prohibits him from moving freely about the institution. He cannot conduct on-site inspection in the institutional office where the inspection would normally be conducted. The institution is not obligated to make the records available to him in his cell. " Citing prior decisions of this office, including 95-ORD-105, Ms. Barker correctly observed that KRS 61.872(3) contemplates that access to public records be provided either by inspection of the records during the regular hours of the agency or by receipt of copies via the mail; however, an inmate cannot exercise the right of inspection at public agencies other than the facility in which he is confined. "Being housed in a segregation unit prevents free movement about the institution," KSR concluded, "and an inmate in a segregation unit may not inspect records given this restricted movement."
By virtue of his confinement in the segregation unit of KSR, Mr. Scott is currently precluded from exercising his right of inspection. 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; 08-ORD-130; 10-ORD-036. 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. Scott "must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. " 95-ORD-105, p. 3; 03-ORD-152; 05-ORD-080.
Although correctional facilities are not authorized to adopt and implement policies which unreasonably delay inmate access, the Attorney General has upheld the policy adopted by the KSR relative to inmates housed in disciplinary segregation. 95-ORD-105; 98-ORD-157; 03-ORD-152; 05-ORD-080. Mr. Scott is entitled to "conduct an on-site inspection, subject to the facility's governing open records policies, after he is released from disciplinary segregation, or he may access the records by receipt of copies when there are sufficient funds in his inmate account to pay for those copies." 05-ORD-080, p. 5, citing 98-ORD-157, p. 4. Inasmuch as the Open Records Act does not obligate a correctional facility such as KSR to bring the original record (s) to an inmate's cell for his inspection, provide a copy of a record(s) to a third party, or store the record(s) with an inmate's personal property until his release from segregation, KSR properly denied Mr. Scott's request in accordance with prior decisions of this office. Until then, he "must accept the necessary consequences of his confinement. " 95-ORD-105, p. 3.
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:
Avren Scott, # 258511William MustageAmy V. Barker