Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Kentucky Open Records Act when it required inmate Reverend James Harrison's (Appellant's) to follow established procedures and prepay the cost of records requested. Because the Open Records Act does not exempt indigent requesters from the requirement for payment of copying fees codified at KRS 61.874(1) 1, this office affirms the disposition of Appellant's request in accordance with governing authorities. We further find that KSP properly invoked KRS 61.872(5) by providing a legitimate explanation of the cause for delay, and providing Appellant the specific date when the records would be available.
On May 29, 2018, Appellant, an inmate at the Eastern Kentucky Correctional Complex (EKCC), submitted three (3) open records requests to KSP. The requests were divided into subparts and sought multiple documents. In addition to the documents, Appellant requested "any documentation" related to the requested documents. In one request, Appellant described the related documents as "summaries, notes, reviews, and tangiable items either in writing and/or electronically created and/or generated." In another request, Appellant described the related documents as "any letters, request(s), and/or inquiries by any inmate about my, the undersigned, property and/or involving their property, book(s), legal file(s), etc: with any documented reply or replies and/or disposition(s) pertaining to those inmate (s) inquiries."
On June 18, 2018, the KSP Open Records Coordinator issued a timely response that stated "[d]ue to your numerous requests sent into our office at one time and the type of documentation you are requesting on each that is not readily available, additional time is needed to locate and review the records." The KSP Coordinator stated that a final response would be issued on June 25, 2018.
On June 25, 2018, Appellant submitted an appeal with this office. Appellant raised only two issues in this appeal. First, Appellant disputed the delay caused by the procedure inmates must follow when submitting payment for open records requests. Appellant stated that he had approached his caseworker to send payment for the requested records. However, the caseworker directed Appellant to submit payment through the Custodian of Records. Appellant submitted payment to the Custodian of Records at EKCC as directed. However, the Custodian of Records at EKCC advised Appellant that his payment would not be processed until the Custodian of Records at KSP determined the cost for the documents. Appellant argues that this was intentional delay and "was in violation of the time limits in the Records Act."
The second issue Appellant raised addressed the notice that additional time would be required to respond to the requests. Appellant argued that the additional time "is a wilful [sic] and intentional delay that the Statute does not authorize and your office has so informed me of this in the past." Appellant argues that the KSP Coordinator "does not give any legitimate reason(s) why the records are not readily available [.]"
KSP responded to the appeal through counsel, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet. Ms. Barker recited the dates of the KSP's responses and argued that the response was timely. To support the argument, Ms. Barker submitted an affidavit from the KSP Coordinator. The KSP Coordinator verified that "[r]esponses were sent on June 25 for the three requests." She addressed the need for delay by stating that the requests were "for multiple records" and "I did not maintain most of the types of records he requested and had to coordinate with multiple other custodians to conduct searches for the various records and for any records located to be reviewed for any exemptions."
Addressing the procedure of prepaying for open records requests. Ms. Barker pointed out that Correctional Policy and Procedure (CPP) 15.7 "controls the percentage that may be deducted from a deposit for debts and inmate Harrison controls most of the new charges to his account." However, she indicated that Appellant did not correctly follow procedure. She stated that Appellant's actions were "efforts to obtain a check prior to knowing the cost of the records." Ms. Barker argued that an open records appeal was not the proper forum for Appellant's dispute with the payment policy.
KSP properly invoked KRS 61.872(5) when it provided Appellant a legitimate explanation of the cause for delay and the specific date when the records would be available. If a public agency will delay inspection beyond three business days, KRS 61.872(5) requires the public agency to provide "a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " Although KRS 197.025(7) 2 modifies the three-day period to a five-day period for institutions within the Department of Corrections, the KRS 61.872(5) requirements continue to apply to correctional facilities.
KSP did not expressly invoke KRS 61.872(5) when it informed Appellant that additional time was necessary to locate and disclose the records. However, the KSP Coordinator provided Appellant with a detailed explanation for cause of the delay. She explained that appellant had requested numerous documents and additional time was necessary to locate and review the records. KSP provided additional detail regarding the need for delay in the response to the appeal. The KSP Coordinator stated that the dispersal of the requested records and the need to coordinate with multiple records custodians required additional time. KSP also followed the requirements of KRS 61.872(5) by designating June 25 as the earliest date on which the records would be available for inspection. The affidavit of the KSP Coordinator shows that KSP met that due date. Under these facts, we find that KSP delayed the response to the open records request in accordance with the requirements of the Act.
The courts and this office have recognized the propriety of a Department of Corrections policy requiring advance payment of copying fees. The Kentucky Court of Appeals has held that an inmate is entitled to receive a copy of a record only after complying with the reasonable charge of reproduction. Friend v. Rees, 696 S.W.2d 325, 326 (Ky. App. 1985). 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). Accordingly, KSP did not violate the Open Records Act when it required Appellant to use the established correctional procedure to obtain records.
There was no error when KSP required Appellant to follow the established payment procedures, even though following that procedure caused delay in processing his requests. KRS 61.874(1) states that "[w]hen copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." Neither this provision nor the remainder of the Open Records Act contains a waiver of this requirement for inmates. Accordingly, the Attorney General has held that correctional facilities may properly require prepayment of copying fees, and enforce standard policies regarding assessment of charges against inmate accounts, despite the delay in processing the requests, which may inevitably result. 95-ORD-105, p. 3; 17-ORD-107. In this case, Appellant was requesting copies of an unknown volume of documents. Appellant attempted to pay for the records in advance, but KSP delayed accepting payment until all of the records had been retrieved and the exact number of requested documents was known. As this office has found that payment of costs is a permissible prerequisite for obtaining public records, the delay in providing copies caused by calculating the appropriate cost did not violate the Act.
A party aggrieved by this decision may appeal it 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.
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