Request By:
Richard Alvarez, #187711
Amy V. Barker
Teresa Peters
Amy Roberts
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
Richard Alvarez initiated this appeal challenging the denial by the Kentucky State Penitentiary (KSP) of his March 1, 2017, request in which he asked for a "copy of my last 25 emails on J-Pay that [are] on my account with J-Pay. Please provide me these copies of my last 25 emails. " In a timely written response, Teresa Peters, KSP Records, denied Mr. Alvarez's request, advising that:
As you [were] transferred from NTC to KSP on 1/26/17 and placed directly into 3 Cellhouse Restrictive Housing [,] please be advised that your request is denied. JPay emails are a service provided by kiosk through an outside vendor and the emails are maintained in a computer format by the vendor. The JPay emails are only available to an inmate who has access to the kiosks. Since an inmate in segregation cannot inspect the record through a kiosk, a copy does not have to be provided."
On appeal Mr. Alvarez claimed that a prison inmate "has the same right to inspect public records as any other person and these public agencies [are] required to supply copies of record[s] to prisoners upon request."
Upon receiving notification of Mr. Alvarez' appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSP. Ms. Barker explained that:
Inmate Alvarez is currently in a restricted housing unit (also known as segregation or a special management unit), 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 restricted housing units . . . The e-messages are an alternate to U.S. Mail and inmates still have access to family and others while in restricted housing units through the mail.
In 15-ORD-062 (copy attached), we decided an appeal based on essentially the same facts: an inmate in a segregation housing unit at KSP could not access emails through the JPay kiosks available to KSP's general population due to his confinement in the Special Management Unit which prevented him from visiting the JPay kiosk locations. That decision, in upholding KSP's denial of the inmate's request for photographs from his JPay emails, relied on a line of decisions by this office affirming open records denials by correctional facilities by inmates housed in segregation, due to their inability to conduct on-site inspection of the records being sought. 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. "[T]he 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." 15-ORD-062, p. 6. The correctional facility complies with the Act by making public records 1 available for on-site inspection, but it is the inmate, through his incarceration in the restricted housing unit, who cannot take advantage of on-site inspection. Under this line of reasoning, KSP is not obligated to facilitate Mr. Alvarez's ability to receive copies of the requested emails given his inability to view those records using the kiosks available to members of the general population. We hereby adopt the analysis in 15-ORD-062 as the basis for our decision that KSP did not violate the Open Records Act by refusing Mr. Alvarez access to the JPay emails.
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 must 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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