Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether Green River Correctional Complex ("GRCC") violated the Open Records Act in requiring prepayment for copies, and whether an inmate's appeal not filed within twenty days of the denial of the request is time-barred. We find that GRCC did not violate the Open Records Act in requiring prepayment for copies, and that an inmate's appeal not filed within twenty days of the denial of the request is time-barred.
Kurt Lowe submitted an open records request to GRCC on Aug. 31, 2016, requesting "Copy of Any/All, Emails, Text, Iphone messages, request, approval notes, memoranda or the like, regarding my transfers from RCC to Hopkins county jail, and from Hopkins Co. to GRCC, either to, or from, any state agent[s] within state Government, Jailer[s] wardens, DOC Classification Branch etc." GRCC responded on Sept. 9, 2016 requesting more time, and sent a final response on Sept. 22 stating that " you included an approved CPO with your request, but you do not have sufficient funds to cover the cost for copies. Therefore, your request is denied per [KRS 61.874(1)] ."
Lowe submitted another open records request to GRCC on Sept. 8, 2016, requesting "A) Policies and Procedures regarding 'Indigents' & 'Indigent status' B) List of -available supplies for indigent inmates-hygiene-legal work., (Note pads, typing paper, pens, penciles envelopes, stamps, etc.)." GRCC responded on Sept. 8, 2016, stating that " your request for copies of the 'list of available supplies for indigent inmates' is denied in accordance with [KRS 197.025(2)]. Policies that are allowed for Inmates to view/research are available in the library. . . . There are no policies that contain a specific reference to an individual ."
Lowe appealed the denial of those requests on Oct. 9, 2016. 1 Regarding the first request for documents pertaining to his transfers, Lowe argued that "simply stating that your not entitled to records because your indigent, or dont currently have the funds to pay for the copies is not by any means, a sufficient response." Regarding the second request for policies and lists of supplies, Lowe argued that "this is an intentional act by KYDOC facilities to conceal the exact list of statutory required supplies that, are required of the KYDOC to provide indigent inmates. . . . Appellant is a representative of a 'Class of People' which, the policies and records sought, directly references."
GRCC responded to the appeal on Nov. 1, 2016. Regarding Lowe's first request for documents pertaining to his transfers, GRCC argued that "the Open Records Act allows an agency to request prepayment for copies of records pursuant to KRS 61.874(1)." Regarding Lowe's second request for policies and lists of supplies, GRCC argued that "the appeal was filed outside the time allowed by statute," and that "the Department of Corrections is not obligated to provide copies of records when the records do not contain a specific reference to the inmate. "
Regarding Lowe's first request for documents pertaining to his transfers, KRS 61.874(1) provides that "when copies are requested, the custodian may require a written request and advance payment of the prescribed fee." A requester becomes "entitled to his records by complying with the reasonable charge of reproduction." Friend v. Rees, 696 S.W.2d 325, 326 (Ky. Ct. App. 1985). See also 09-ORD-088 ("It is 'entirely proper for [a correctional] facility to require prepayment, and to enforce its standard policy relative to assessment of charges to inmate accounts.'"). Accordingly, GRCC did not violate the Open Records Act in requiring prepayment before providing copies of records.
Regarding Lowe's second request for policies and lists of supplies, KRS 197.025(3) provides that "all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial." Lowe's request was denied on Sept. 8, 2016, but he did not appeal it until Oct. 9, 2016. Because Lowe is "'a person confined in a penal facility,' and failed to challenge the denial . . . within twenty days in accordance with KRS 197.025(3), his appeal is time-barred. " 07-ORD-058. Accordingly, Lowe's appeal of his Sept. 8, 2016 request for policies and lists of supplies is time-barred. 2
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
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