Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Summary : Kentucky State Penitentiary did not violate the Open Records Act in declining to provide copies to inmate without prepayment of reproduction charges. In accordance with KRS 61.874(1),
Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), and prior decisions of this office, the denial is affirmed.
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in the disposition of Stephanio Cole's May 8, 2018, request for "a 'time card' and something that will show that Detainer in Bell County, Pineville charges [have] been [withdrawn] or dismissed showing no detainers. " In a timely written response per KRS 197.025(7), KSP notified Mr. Cole that his inmate account had insufficient funds to pay for the requested copies. Mr. Cole's account had a zero balance and KSP advised that he would owe $ 0.40 for the requested copies (four pages at ten cents per page). On appeal, Mr. Cole cited his indigent status and emphasized that he owes more than $ 100.00 in restitution; he also noted that he requested the documents to use in pursuing judicial relief.
Upon receiving notification of Mr. Cole's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSP. Relying upon KRS 61.874(1),
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.]
This office affirms the agency's disposition of Mr. Cole's request. "When copies are requested, the custodian may require a written request and advance payment of the prescribed fee." KRS 61.874(1). Courts and this office have 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, this office finds that KSP did not violate the Open Records Act by denying Mr. Cole's request despite his inability to pay for the requested copies. See 15-ORD-022; 17-ORD-098.
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 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.