Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
Kurt J. Lowe ("Appellant") initiated this appeal by letter dated January 16, 2018, challenging the denial by Northpoint Training Center ("NTC") of his December 28, 2017, request for one copy each of the "Deputy Warden's letter dated 12/18/17 to me and posted to my JPay account," and the "letter I sent to the Deputy Warden prompting her response on 12/18/17." The request was stamped as received by the Offender Information Services Office on January 3, 2018. Pursuant to KRS 197.025(7), NTC had five calendar days, excepting Saturdays, Sundays and legal holidays, to respond to the request. A timely response was sent by NTC staff on January 3, 2017, denying the request because Appellant did not have sufficient funds in his account to obtain the requested records, which constituted five (5) pages and would have required prepayment of $ 0.50. Appellant argued, on appeal, that a signed CPO 1 without sufficient funds on his account for payment constitutes payment in advance for copies, pursuant to a Department of Corrections internal policy, CPP 14.4. 2
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 NTC. Relying upon prior open records decisions, Ms. Barker explained that an inmate cannot obtain free copies of a record through an open records request. Ms. Barker also referred to records produced to this Office in response to an earlier appeal 3 from Appellant. Those records document that Appellant did not have sufficient funds to pay for the records he requested in this current appeal.
"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, 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, " 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, NTC did not violate the Open Records Act by denying Appellant's request despite his inability to pay for the requested copies.
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.
Footnotes
Footnotes
1 CPO is the acronym for "cash payout," an internal form for inmates to use to pay for services such as mail postage and for copies of records requested through the open records process.
2 CPP" stands for Corrections Policies and Procedures.
3 The decision for that earlier appeal is 18-ORD-026.