Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act ("Act") in denying three open records requests submitted by inmate Stephanio Cole ("Appellant"). For the reasons stated below, we find that KSP did not violate the Act.
On April 3, 2019, Appellant submitted a Request to View/Obtain Health Information form seeking to inspect his personal medical records dated April 1, 2018 through May 1, 2019. On April 9, 2019, KSP denied the request, stating: "[t]he [Act] does not require an inmate who has been placed in disciplinary segregation be furnished with an escort so that he may exercise his right of on-site inspection. Once you are released from segregation you may access your records[.]" KSP also stated, "the facility is under no obligation to bring the original records to [your] cell for inspection. "
On May 13, 2019, Appellant submitted two Request to Inspect Public Records forms seeking copies of numerous mental health reports. Appellant attached two Cash Paid Out ("CPO") authorizations that were absent a money transfer amount and marked "Indigent. " On May 20, 2019, KSP denied the requests, stating: "[the] Department of Corrections has taken the position that it is not a 'health care provider' thus is not required to provide free copies of the medical record. This includes those individuals who are listed as indigent. " KSP argued that KRS 61.874(2) allowed the custodian may require advance payment of the prescribed fee, and if applicable, postage. The amount of records you have requested greatly exceed that you have available in your account." On May 22, 2019, Appellant appealed the disposition of his requests.
Angela Cordery, Assistant General Counsel, Justice and Public Safety Cabinet responded to the appeal on behalf of KSP. Ms. Cordery argued that KSP properly denied Appellant's request to inspect records because, "the [Act] does not require an inmate who has been placed in disciplinary segregation be furnished with an escort so that he may exercise his right of on-site inspection. " Regarding Appellant's request for free copies of medical records, Ms. Cordery argued KRS 61.874(1) allowed KSP to require advance payment of fees for copying, and if applicable, postage before providing copies.
Because Appellant is currently in the disciplinary segregation unit, KSP properly denied his two requests to inspect medical records. By virtue of this confinement, Appellant is currently precluded from freely moving about the facility and exercising his right of inspection. The Attorney General has recognized that an inmate housed in a correctional facility is uniquely situated with regard to exercising his rights under the Open Records Act. 95-ORD-105, p. 3; 05-ORD-080. While "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof," the movements of an inmate within a facility are presumably restricted; accordingly, a prison inmate, "must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. " 95-ORD-105, p. 3 (citing 94-ORD-90). Although correctional facilities are not authorized to adopt and implement policies which unreasonably delay inmate access to public records, "[t]he Attorney General has consistently affirmed the denials by correctional facilities of requests by inmates housed in disciplinary segregation based on their inability to conduct on-site inspection. " 15-ORD-062. 1 Accordingly, KSP did not violate the Act in denying Appellant's requests to inspect medical records.
KSP correctly observed that KRS 61.874(1) allows a records custodian to require, "a written request and advance payment of the prescribed fee[.]" Further, the Act does not entitle an indigent inmate to free copies of public records, or to a waiver of applicable reproduction charges. 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, 326 (Ky. App. 1985), the 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, p. 3. 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). Therefore, KSP did not violate the Open Records Act by denying Appellant's request due to his inability to prepay the applicable reproduction charges.
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.
Footnotes
Footnotes
1 In 05-ORD-080, we explained the reasoning behind not allowing inmates in punitive segregation to inspect records:
Although the Open Records Act contemplates access by one of two means, on-site inspection during the regular office hours of the agency or receipt of copies through the mail, the former approach to inspection may pose a problem in the restrictive environment of a correctional facility. "Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined." If the inmate is prohibited from moving freely around the facility, as is the case here, and is therefore unable to conduct an on-site inspection in the office where the records are maintained, "the facility is under no obligation to bring the original records to his cell for inspection." Under such circumstances, the facility may deny access . . . .
05-ORD-080, p. 4 (citations omitted).