Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Doy Beasley appeals the Butler County Jailer's failure to respond to his January 25, 2016, request for copies of "[a]ll PREA grievance [s]" he filed, including statements taken by Rocky Tyrea and Tara McMillian on April 23, 2015, and related records. Mr. Beasley asked that he be billed for the records and agreed to pay by check or to send a family member to "come and pay the bill. In the next 30 days [sic]." Mr. Beasley received no response to his request, prompting him to initiate this open records appeal.
On behalf of the Butler County Jailer, Butler County Attorney Richard J. Deye responded to Mr. Beasley's appeal on February 22, 2016. Mr. Deye acknowledged the jailer's receipt of Mr. Beasley's request but did not address the jailer's failure to respond to the request. He also acknowledged the jailer's "possession of the records that Mr. Beasley desires." He indicated that six responsive records exist and that a ten cents per page copying charge would be assessed. Continuing, Mr. Deye observed:
The jail understood from the open records request that a member of Mr. Beasley's family would be in to pay the copy charge. No one ever appeared. At such time as Mr. Beasley or a member of his family pays the copy charge of 60 cents, the records can be forwarded to Mr. Beasley. We are uncertain from Mr. Beasley's records request exactly what records Mr. Beasley is requesting. The request requests all "PREA and grievance filed by Doy S. Beasley". The records pertaining to the PREA matter consist of the 6 pages mentioned. Apparently Mr. Beasley filed other grievances (perhaps medical grievances) . Those records may total in excess of 50 pages. If Mr. Beasley wants the PREA records, we need 60 cents. If Mr. Beasley wants non PREA grievances, we would ask that he inform us and we will count those pages for him.
Although the jailer was statutorily authorized to require prepayment of copying charges for records produced in response to Mr. Beasley's open records request, his failure to respond in writing, and within the appropriate time frame, to Mr. Beasley's request impeded Mr. Beasley's right of access. Given the jailer's silence, Mr. Beasley was wholly unaware that the records were available and therefore unable to make provision for payment of copying costs.
KRS 61.880(1) establishes the legal requirements for agency response to an open records request. 1 As noted, the statute plainly requires the agency to provide written notification of the availability of the records for onsite inspection or transmittal of copies through the mail upon prepayment of copying and postage charges. KRS 61.878(3)(a) and (b). Alternatively, the statute requires written notification to the requester that his request is denied. The denial must "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." The Butler County Jailer failed to discharge this statutory duty leaving Mr. Beasley uncertain about the status of his request and ultimately forcing him to initiate an open records appeal. The jailer's omission constituted a violation of KRS 61.880(1).
"When copies are requested" KRS 61.872(3)(b) and KRS 61.874(1) authorize public agencies to "require . . . advance payment of the prescribed [copying] fee, including postage where appropriate." In his January 25 request, Mr. Beasley suggested two alternative means by which prepayment of copying fees could be accomplished. Although he failed to do so in a timely fashion, the Butler County Jailer properly required prepayment of copying fees. Mr. Beasley, having now learned of the availability of the records, must take affirmative steps to arrange for the transfer of funds.
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.
Footnotes
Footnotes
1 KRS 197.025 supplements these requirements in the context of a request submitted to a correctional facility.