23-ORD-176
July 19, 2023
In re: James Hightower/Western Kentucky Correctional Complex
Summary: The Western Kentucky Correctional Complex (the
“Complex”) did not violate the Open Records Act (“the Act”), or subvert
the intent of the Act within the meaning of KRS 61.880(4), when it
required an inmate to pay ten cents per page for a certified account
statement.
Open Records Decision
On May 24, 2023, inmate James Hightower (“Appellant”) requested a certified
six-month statement of his inmate account from the Complex and provided the fee of
20 cents for two pages. In a timely response, the Complex provided the requested
record. This appeal followed on June 16, 2023.1
Under KRS 61.874(1), “[w]hen copies are requested, the custodian may require
. . . advance payment of the prescribed fee.” Thus, 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); see also 23-ORD-029; 95-ORD-
105. Furthermore, ten cents per page is a reasonable charge for copies. Id.
The Appellant, however, claims he should not have been required to pay for
the specific record he requested. Under KRS 61.880(4), a person may appeal to this
1
The Appellant attached copies of three previous requests and responses to his appeal. However,
the responses to those requests were issued on April 12, May 2, and May 11, 2023. Under
KRS 197.025(3), a person “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[.]” Because the Appellant did not initiate this appeal
within 20 days of any of the Complex’s previous responses, this Office is without jurisdiction to review
the dispositions of those previous requests.Office if he “feels the intent of [the Act] is being subverted by an agency short of denial
of inspection, including but not limited to the imposition of excessive fees.” Here, the
Appellant argues he is entitled to free copies of the certified statement under
Corrections Policy and Procedure (“CPP”) 14.4(II)(F), which provides that “[a]n
inmate who can demonstrate by court order, statute, or court rules a definite deadline
for a lawsuit concerning [the legality or circumstances of his confinement] shall be
allowed to have copies and postage upon signing a cash pay order (CPO) even if the
inmate’s cash account is inadequate to pay the expense.”2 In this case, however, the
application of CPP 14.4(II)(F) is irrelevant because the Appellant’s account contained
an amount sufficient to pay the fee of 20 cents.3 Moreover, even if the Complex had
failed to comply with internal Department of Corrections procedures, such
noncompliance would not have constituted a violation of the Act or rendered the fee
excessive under KRS 61.880(4). Therefore, the Complex did not violate or subvert the
intent of the Act.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#264
Distributed to:
James Hightower, #172650
2
See https://corrections.ky.gov/About/cpp/Documents/14/CPP%2014.4.pdf (last accessed July 19,
2023).
3
Furthermore, as the Complex explains, the certified account statement is “a new record that is
created for litigation” in forma pauperis under KRS 454.410, as opposed to an existing record. Thus,
the Appellant’s request for a certified statement was not a request for inspection or copies of existing
records under KRS 61.872.Amy V. Barker, Esq.
Ms. Lydia C. Kendrick
Ms. Ann Smith