Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Uriah Pasha appeals Kentucky State Reformatory's disposition of his January 12, 2015, request for "[a] copy of Grievance No. 14-2029" that he filed on December 29, 2014, and that was "rejected by Ms. Hogue for failure to comply with the Policy CPP 14.6 five (5) working day clause." He complains that KSR "refused to respond" to his open records request and asks that the Attorney General "[r]ead the inmate grievance and rejection notice" and thereafter "investigate this matter . . . ." 2
In a letter dated February 6, 2015, directed to this office, KSR responded to Mr. Pasha's appeal through counsel. Counsel advised that KSR "did not receive the request until it was received with the appeal from the Attorney General's Office" but that the facility immediately notified Mr. Pasha, in writing, that he must "provide the required money authorization form to allow for prepayment" in the amount specified in that response, a copy of which she attached.
In 15-ORD-021 this office affirmed a correctional facility's refusal to respond to a hand delivered open records request based on a Corrections policy requiring inmates to submit their open records request "by institutional mail to the coordinator" or "by first class regular mail to the custodian of the agencies records [sic]." Our conclusion turned on the Kentucky Supreme Court's analysis in Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008). At page 3 of that decision, we observed:
In Chestnut , the Kentucky Supreme Court rejected the Department of Corrections' reliance on a Policy and Procedure that required an inmate to provide a "reasonably particular description of the record being requested." "As an administrative agency," the Court concluded, DOC could not "by its rules and regulations, amend, alter, enlarge or limit the terms of legislative enactment," and the Open Records Act contained no particularity requirement. Chestnut at 662. By its express terms, KRS 197.025(4) provides that "KRS 61.870 to 61.884 to the contrary notwithstanding, the Department of Corrections shall refuse to accept the hand delivery of an open records request from a confined inmate. " The policy upon which the Detention Center relied does not "purport [] to add a requirement not found in the statutes." Id .
15-ORD-021, p. 3.
The policy on which KSR relies in requiring Mr. Pasha to prepay for copies of the records identified in his request, by submission of properly executed authorization to use inmate account form, does not "purport [] to add a requirement not found in the statutes." Id . KRS 61.872(3)(b) directs public agencies to provide copies "upon receipt of all fees and the cost of mailing" and KRS 61.874(1) states that "[w]hen copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." Accord, Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985) (inmate action against Kentucky State Reformatory for failure to furnish his financial records properly dismissed where record showed that he was offered his records upon payment of ten cents per page copying fee). As the office has stated on numerous occasions, "an inmate must accept the necessary consequences of his confinement, including policies relating to application for, and receipt of, public records" as long as those policies are supported by statute and do not unreasonably impede inmate access to nonexempt records. 95-ORD-105, p. 3, citing 94-ORD-90. CPP 6.1 Section II(B)(4) is supported by KRS 61.872(3)(b) and KRS 61.874(1) and does not impede inmate access to nonexempt records. KSR properly relied on this policy in responding to Mr. Pasha's request.
Mr. Pasha also alleges that KSR failed to respond to his request within five business days as required by KRS 197.025(7). KSR denies receipt of Mr. Pasha's request at any time prior to submission of his appeal and notification of same by this office. We are not prepared to find a violation of the Act based on KSR's alleged failure to respond within five business days in the absence of proof supporting Mr. Pasha's claim that he transmitted his request to KSR and that KSR received the request. As we have often observed, this office is unable to "resolve a dispute concerning actual transmission and receipt of a request." See, e.g., 03-ORD-224; 11-ORD-012. We make no finding on Mr. Pasha's allegation that KSR violated KRS 197.025(7) by failing to respond to his request within five business days.
Either party may appeal this decision 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.
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