Request By:
Kurt J. Lowe, # 284794
Amy V. Barker
Heather McManis
Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Kurt J. Lowe initiated this appeal by letter dated April 6, 2017, challenging the denial by Luther Luckett Correctional Complex ("LLCC") of his March 31, 2017, request for one copy each of the "[Green River Correctional Complex] Property Sheet that came to LLCC with Kurt J. Lowe during his transfer here" and the "LLCC Legal Mail log (redacted) of three mailings by Kurt J. Lowe" on March 20, 2017, and March 31, 2017. In a timely written response, LLCC Records Supervisor Heather McManis advised Mr. Lowe that his inmate account had insufficient funds to pay for the requested copies. On appeal Mr. Lowe argued that LLCC violated CPP 14.4, II(B)-(F) in denying his request and that he requires the records for use as physical evidence in 2016-CA-001046.
Upon receiving notification of Mr. Lowe's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of LLCC. Relying upon
Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), and prior Open Records Decisions, Ms. Barker correctly asserted:
Under the Open Records Act an inmate is not entitled to free copies. KRS 61.874(1) provides that a records custodian may require a written request and advance payment of fees for copying, and if applicable, postage. The Open Records Act does not provide for the waiver of reproduction charges for an inmate with no money in his inmate account. The Attorney General has repeatedly held that if an inmate requests copies and his inmate account does not contain sufficient funds to cover the copying fee, a public agency is not required to provide copies. [Citations omitted.] His inmate account currently has a zero balance. See [Kentucky Offender Management System] account summary attached[. ] He can make a new request when he has at least thirty cents in his account as indicated in the response.
"When copies are requested, the custodian may require a written request and advance payment of the prescribed fee." KRS 61.874(1). The courts and this office have both recognized the propriety of a Department of Corrections policy requiring advance payment of copying fees. In
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that an inmate is entitled to receive a copy of a record only after "complying with the reasonable charge of reproduction. " Accordingly, the Attorney General subsequently determined that 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 . . .." 95-ORD-105. While acknowledging that "this prepayment policy might work a hardship on inmates, " the Attorney General has nevertheless upheld the policy as "entirely consistent with the Open Records Act and the rule announced in Friend v. Rees ." 97-ORD-131, quoting 95-ORD-90. In accordance with KRS 61.874(1) and this line of authority, LLCC did not violate the Open Records Act by denying Mr. Lowe's request despite his inability to pay for the requested copies.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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.