Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue in this appeal is whether the Eastern Kentucky Correctional Complex ("EKCC") violated the Kentucky Open Records Act in denying inmate Leonel Martinez's request for a copy of his medical records. For the reasons stated below, we find that EKCC did not violate the Act.
Mr. Martinez ("Appellant") made his first request for a copy of his medical records on November 17, 2017. A response was sent by EKCC on November 20, 2017, denying the request and explaining that the denial was due to his lack of any funds to pay for copies of the requested records. The courts and this office have recognized the propriety of a Department of Corrections policy requiring advance payment of copying fees by inmates. In
Friend v. Rees, 696 S.W.2d 325 (Ky. App. 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, " this office 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 these precedents, EKCC did not violate the Open Records Act by denying Appellant's request due to his inability to pay for the requested copies.
Appellant had twenty (20) days to appeal EKCC's response pursuant to KRS 197.025(3), which states:
KRS 61.870 to 61.884 to the contrary notwithstanding, 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 pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.
Appellant's appeal is dated December 13, 2017, which is three (3) days beyond the statutory 20-day appeal period and is thus time-barred by operation of KRS 197.025(3). To hold otherwise would circumvent the intent of the General Assembly as expressed in KRS 197.025(3). See 02-ORD-54; 07-ORD-058; 08-ORD-209; 14-ORD-001; 15-ORD-137; 17-ORD-218.
Appellant made a second request for the same records on November 21, 2017, and now attempts to appeal EKCC's response to that second request. Upon receiving notification of the appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of EKCC, correctly observing that the initial request could not be appealed as it was time-barred. Ms. Barker further explained that the second request for the same records did not revive the initial request and could not be the basis for appealing EKCC's denial for the identical request. Existing legal authority validates the agency's position. As we decided in 14-ORD-054, a subsequent request for the same records does not revive the appeal rights forfeited by an inmate's previous failure to appeal within the allotted time. We adopt the reasoning in 14-ORD-054 and find Appellant's appeal untimely due to the expiration of his appeal time from the November 20 denial. Accordingly, we do not reach the merits of the appeal.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.