Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Aaron Rivers initiated this appeal challenging the denial by the Kentucky State Penitentiary (KSP) of his February 23, 2015 request in which Mr. Rivers advised, "I rec'd and reviewed the 1st 3 photos from my J-Pay e-mails. I discarded them and now request the second 3 photos. I request to inspect them exactly as they appear on record. We are allowed to have an additional 3 photos as long as we discarded the others." In a timely written response, KSP Offender Information Supervisor Amy Roberts denied Mr. Rivers' request, advising that "[t]he JPay emails are not public records maintained by the institution. These emails are a service provided by an outside vendor and the emails are maintained in a computer format by the vendor and not by the institution." Because the requested e-mails "are not public records subject to the Open Records Act, " Ms. Roberts concluded, "KSP does not provide copies." Ms. Roberts further advised that "[t]here is also a security reason for the denial. Per KSP Policy 10-02-01 'Three photographs no larger than 8 1/2 x 11' are allowed in special management unit cells. "
On appeal Mr. Rivers quoted the definition of "public record" codified at KRS 61.870(2), arguing that KSP "has custody and 'possession' of the documents" because staff review the e-mails from JPay for security reasons before allowing inmates to have access. KSP staff also use the e-mails "for investigatory purposes and to monitor inmate communications." Mr. Rivers further observed that KSP agreed to provide him with "these very same records after I filed a previous appeal [Log No. 201500073]." In his view, Policy 10-02-01 only prevents an inmate confined to a segregation unit from having more than three photographs in his possession at once.
Upon receiving notification of Mr. Rivers' appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSP, acknowledging that KSP "provided the messages in a previous request (other than photo attachments that exceeded the security rules of the segregation unit). This was initially done to allow the institution time to review how to handle these requests and develop a future response for them." 1 KSP ultimately determined that such e-mails "did not appear to be public records and that KSP would not use its finite staff time to provide copies to inmates in segregation units who can no longer access the kiosks for e-messages. " Ms. Barker elaborated as follows:
Inmate Rivers is currently housed in a segregation housing assignment which prohibits him from moving freely about the institution . The Department of Corrections (DOC) has a contract with JPay Inc. to primarily provide authorized payments to inmate accounts, but also to allow electronic messages from friends and family. Inmates can access the e-messages for them through an internet connection to the servers of the outside vendor, JPay Inc. The DOC does not download all of the e-messages and store them on its own equipment for inmate access. The access is instead web-based and inmates may access the e-messages at kiosks located in General Population at KSP. Inmate access is not available in the segregation units . . . . The e-messages are an alternate to U.S. Mail and inmates still have access to family and others while in segregation units through the mail. KSP mail room staff login and review e-messages in the same way that letters sent through the U.S. Mail are reviewed, but the risks of contraband are reduced because of the electronic delivery method. The electronic delivery also allows quicker access between the correspondents than physical delivery allowed. . . . The contract indicates that the DOC owns the data largely for the account transactions and to ease change of vendors at the end of the contract.
The JPay e-messages are not public records that are subject to release pursuant to the Open Records Act. They are maintained by an outside vendor on a web-based system to which DOC staff has access for security reasons before they are distributed to inmates in the same manner as mail is provided to inmates. They are intended to be a substitute for physical mail sent to the prison. The system is akin to Westlaw, Court Net, and the federal Pacer court docket system.
(Emphasis added.)
In addressing Mr. Rivers' argument regarding application of Policy 10-02-01, a copy of which Ms. Barker attached to her written response, she advised that Mr. Rivers "did not have the option of discarding the pictures he had in segregation and seeking to obtain new pictures. His option was to keep the three he had already obtained or do without while he is in the segregation unit." KSP further asserted that "segregation rules do not allow for this cycling of pictures in and out of property in segregation. The secure nature of the unit and the limited staff time to manage the security of the unit do not allow for the picture swapping proposed by Inmate Rivers." Ms. Barker was informed "that the pictures would have been treated in the same manner if they had been received in correspondence by U.S. Mail. "
Emphasizing that KSP is the only maximum security prison in the DOC system and some of the most dangerous inmates are incarcerated there, Ms. Barker advised that segregation units are older and smaller at KSP than units in other institutions. Relying upon a line of decisions by this office construing KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), KSP therefore argued, in the alternative, that it "has to be able to set rules for the unit that assist with the security of the unit" and "[t]he Attorney General should defer to the reasonable exercise of discretion by the DOC." While this argument is persuasive, further discussion is unwarranted since Mr. Rivers cannot access the requested e-mails by using the kiosks available to members of the general population due to his confinement in the Special Management Unit (SMU). This office finds the line of decisions affirming denials by correctional facilities of requests by inmates housed in segregation, based on their inability to conduct on-site inspection of the records being sought, a precondition to receiving copies, equally controlling here.
The Attorney General has consistently recognized that 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. 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 restricted; accordingly, an inmate such as Mr. Rivers "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. For example, by virtue of his confinement an inmate "may be foreclosed from exercising the right to inspect public records prior to obtaining copies." 05-ORD-080, p. 4; 15-ORD-005.
Thus, in 95-ORD-105 the Attorney General concluded:
Although the statute contemplates records access by one of two means, on-site inspection during the regular office hours of the agency or receipt of the records from the agency through the mail, access via on-site inspection may pose a problem in the restrictive environment of a correctional facility. KRS 61.872(3). Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined. And, if he is prohibited from freely moving about in the facility, and therefore cannot conduct an on-site inspection in the records office, the facility is under no obligation to bring the original records to his cell for inspection.
Id., pp. 3-4. Following this line of reasoning, in 00-ORD-225 at page 4 the Attorney General engaged in the following analysis:
In Blair v. Hendricks, [30 S.W.3d 802 (Ky. App. 2000), 2 ] the court held that an inmate was improperly denied access to records of a disciplinary committee at the correctional facility where he was housed. Recognizing that "the Kentucky Open Records Act makes no exception for records held by incarceration facilities or requests for public records made by prison inmates, " and that an inmate enjoys the same rights under the Act as any other records applicant, the court concluded that "[p]ublic agencies are required to supply copies of records to prison inmates upon request." [Citation omitted.] Clearly, the court did not intend to invest inmates with greater rights than other records applicants by eliminating the requirement of prepayment for copies, or requiring agency employees to physically transport requested records to the inmate's current housing unit so that he might exercise his right to inspect. Because an inmate enjoys equal, but not greater, rights under the Act, he must comply with the requirements found at KRS 61.872(3)(b) and KRS 61.874(1) before accessing records by receipt of copies, and KRS 61.872(1) and (3)(a) before accessing records by on-site inspection. Just as the Open Records Act does not require a public agency to physically transport records to the home or office of a non-inmate, on demand, to facilitate inspection, so the Act does not require a public agency, including a correctional facility, to physically transport records to an inmate's housing unit, on demand, to facilitate inspection . Any other interpretation of Act is not supported by the language of the statutes and could not have been the intent of the General Assembly in enacting the Open Records Act, or the Court of Appeals in construing it. An inmate who is disciplined for an infraction by being placed in segregation forfeits not only his ability to move about within the correctional facility, but the ability to exercise his right of inspection under the Act.
(Emphasis added.); 12-ORD-082; 13-ORD-027.
Although correctional facilities are not authorized to adopt or implement policies which unreasonably delay inmate access to nonexempt public records, the Attorney General has consistently affirmed the denials by correctional facilities of requests by inmates housed in disciplinary segregation based on their inability to conduct on-site inspection, albeit in different contexts. 95-ORD-105; 03-ORD-152; 05-ORD-080; 08-ORD-130. The instant appeal presents no basis to depart from these governing precedents. Under this line of reasoning, KSP is not obligated to facilitate Mr. Rivers' ability to receive copies of the requested photographs given his inability to view those records using the kiosks available to members of the general population. See 08-ORD-130 (KSP did not err in denying inmate's request as he was precluded from conducting on-site inspection of audio recordings prior to receiving copies per KRS 61.872(3) and the Act does not require a correctional facility 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 his personal property until his release from segregation) . Accordingly, this office affirms the denial by KSP of Mr. Rivers' February 23 request. Discussion of whether KSP Policy 10-02-01 "amend[s], alter[s], enlarge[s], or limit[s] the terms of the Open Records Act" by limiting the number of photographs that inmates may possess while housed in segregation is therefore unnecessary.
Department of Corrections v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008).
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 In responding to Mr. Rivers' prior appeal, identified as Log No. 201500073, KSP relied on the inability of Mr. Rivers to conduct on-site inspection using the kiosks available to inmates in the general population, citing prior decisions of this office, including 95-ORD-105. The issues presented in that appeal were rendered moot upon disclosure of the requested photographs and no decision was rendered. See 40 KAR 1:030, Section 6.
2 Overruled on other grounds in Lang v. Sapp, 71 S.W.3d 133 (Ky. App. 2002).