Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
Nashawn Tyus initiated this appeal by letter dated February 27, 2015, challenging the disposition by Kentucky State Penitentiary (KSP) of his January 26, 2015 request for "a copy of all the recorder transcripts" that were made when he went to "court-call" for his write-ups, including September 2013, December 2013, January 2014, May 2014, November 2014, and January 3, 12, and 17, 2015. Mr. Tyus also challenged the denial by KSP of two separate requests dated February 11, 2015, asking for "a copy of the recorder transcripts" of the "PREA" that he filed on Jan, 13, 2015, and a copy of the grievance that he filed on January 13, 2015, regarding a PREA, including the attachment. On appeal Mr. Tyus raised various constitutional issues which are beyond our scope of review under KRS 61.880(2). Upon receiving notification thereof, Staff Attorney Catherine M. Stevens, Justice and Public Safety Cabinet, responded on behalf of KSP. With regard to Mr. Tyus's February 11 request for a copy of his January 13, 2015 grievance, which KSP initially denied on the bases of KRS 61.878(1)(i) and (j), Ms. Stevens advised that KSP supplemented its original response on March 19, 2015, offering to provide a copy of the grievance, including the attachment, upon receipt of payment. Ms. Stevens provided a copy of the agency's March 19 letter as verification. Because KSP has now agreed to provide Mr. Tyus with a copy of the requested grievance, including attachment, issues regarding that record have been rendered moot per 40 KAR 1:030, Section 6. See 03-ORD-087. Accordingly, our analysis will focus on the agency's disposition of his remaining two requests.
In separate responses dated February 12, 2015 and February 18, 2015, respectively, KSP denied Mr. Tyus's January 26 (received February 10) and February 11 (received February 13) requests for specified recordings because "[a]udiocassette tapes are not permitted property in the segregation unit, pursuant to KSP policy for special management inmates. " KSP cited KRS 61.872(3) and prior decisions of this office in support of its position that "[t]he Kentucky Open Records Act does not obligate a state prison to provide the audiocassette tape to a third party or even to store the audiocassette tape with an inmate's personal property pending the inmate's release from segregation. " 1
On appeal Ms. Stevens elaborated upon the agency's position as follows:
The remaining issues in this appeal concern the requests for audio recordings of several hearings. Inmate Tyus is currently in a segregation housing assignment which prohibits him from moving freely about the institution. The items he may have with him in the segregation unit are also severely restricted. Audiocassette tapes/ CDs are not permitted in the segregation unit. (See "3 Cellhouse Segregation Unit Operating Rules and Standards for Inmates, " attached as Ex. 2). Inmate Tyus is unable to conduct an on-site inspection by using audio equipment that is available to inmates in General Population. The institution is not obligated to make the records available to him in his segregation unit.
Relying upon prior decisions of this office, and 95-ORD-105 in particular, Ms. Stevens reiterated that "[b]eing housed in a segregation unit prevents free movement about the institution and an inmate at KSP in a segregation unit may not inspect records given this restricted movement."
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; 08-ORD-130. 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. 95-ORD-105, p. 3 (citation omitted); 05-ORD-080. Accordingly, an inmate such as Mr. Tyus "must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. " Id.
For example, 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 may require prepayment of copying fees, and enforce standard policies regarding assessment of charges against inmate accounts despite the delay in processing the request which may inevitably result. 95-ORD-105, p. 3; 05-ORD-080. By the same token, an inmate may be foreclosed from exercising the right to inspect public records prior to obtaining copies. Although the Open Records Act contemplates access by one of two means -- either on-site inspection during the regular office hours of the agency or the receipt of copies through the mail, the former approach to inspection may pose a problem in the restrictive environment of a correctional facility. KRS 61.872(3) ; 95-ORD-105, p. 3; 05-ORD-080.
Although correctional facilities are not authorized to adopt or 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; 08-ORD-130; 10-ORD-036. If the inmate is prohibited from moving freely around the facility, as in this case, and is therefore unable to conduct an on-site inspection in the office where the records are maintained, "the facility is under no obligation to bring the original records to his cell for inspection. " 95-ORD-105, p. 3; 98-ORD-157; 05-ORD-080. Thus, in 03-ORD-152 this office concluded:
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 the Penitentiary'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 copy thereof. KSP's representative also explained that the agency is not required to furnish a record to a third party. Accordingly, it appears the Penitentiary acted in accordance with the Open Records Act.
Id., p. 2; 10-ORD-036. Because the instant appeal presents no basis to depart from this line of decisions, the Attorney General reaches the same conclusion here.
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.
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