OAG 92-94


June 9, 1992




______________________

Open Records Appeal

File Identification No. 715

William Lee Clark

Mr. Scott J. Varland

Legislative Research Commission

700 Capitol Avenue

Frankfort, Kentucky 40601

Dear Mr. Varland:

Mr. William Lee Clark has appealed to the Attorney General, pursuant to KRS 61.880, the Legislative Research Commission's failure to respond, in a timely fashion, to his open records requests. Mr. Clark, who is incarcerated in the Kentucky State Penitentiary at Eddyville, submitted his requests to the Commission through several of its employees, as well as Representatives Ernesto Scorsone, Bill Lear, and Charles Geveden. He indicates that he requested copies of, inter alia, "the names, titles, professions . . . and business addresses of the appointed members of" the Kentucky Corrections Commission, created under authority of KRS 439.302. In addition, he asked, for a copy of House Bill 123 and "the report compiled by the Corrections Cabinet on a breakdown of food costs, personnel costs, [and] utility costs . . . for all adult institutions."

In a letter to this Office dated May 3, 1992, Mr. Clark expressed concern that his requests "have fallen into a 'blackhole.'" He asked whether this Office has issued an opinion in which we stated that an inmate may be denied access to public records, and if not, what is his recourse under the Open Records Act.

You responded to Mr. Clark's request in a letter dated May 12, 1992. You explained that his April 30, 1992, letter to Mr. Don Judy, Assistant Director of Budget Review for LRC, had been forwarded to Mr. Bob Sherman, Deputy Director for Committee and Staff Coordination, since the subject of his requests "pertained to matters inside and outside the jurisdiction of Budget Review." Mr. Sherman then asked you to prepare a response.

Continuing, you advised:

I and other LRC staffers will begin work immediately on responding to your letter. However, we will need until May 15 to gather information that we understand you want and to determine which, if any, elements of your letter need clarification.

On May 15, I will write you to provide you with information on the function and duties of the LRC requested in your letter. I may also ask you to clarify some elements of your letter. Lastly, pursuant to KRS 61.874, I will ask you to pay a reasonable fee (i.e. $ .10 a page) before I mail you copies of LRC records under the Open Records Act. Once I receive payment, then I will mail you copies of the records.

In a follow up letter dated May 15, 1992, you advised Mr. Clark that LRC would not charge him for copies on this occasion, but would, in the future, charge him $.10 per page. You indicated that his request for a copy of HB 123 had been forwarded to Rep. Charles Geveden, who would provide him with a copy of the bill along with the individual costs breakdown by adult institution. You furnished Mr. Clark with the minutes of the Budge Review Subcommittee on Justice, Corrections, and Judiciary of the House Appropriations and Revenue Committee, which he had apparently requested on a previous occasion, FB 1992-94 Commonwealth Budget - Final Budget Memorandum as it relates to the Corrections Cabinet, and the 233 page study prepared by LRC's Program Review and Investigations Committee relating to the parole of adult criminal offenders. You directed him to the Corrections Cabinet for a copy of a list of members of the Kentucky Corrections Commission and its Biennial Budget Requests, and to the Finance and Administration Cabinet for the need/cost analyses on specific projects. Finally, you advised him to contact the Governor's Office for Policy and Management to obtain copies of explanations regarding the governor's recommendation vis-a-vis the budget as it relates to the Corrections Cabinet.

Mr. Clark ask that we review LRC's handling of his requests to determine if the agency acted consistently with the Open Records Act. For the reasons set forth below, we conclude that your response, although procedurally deficient, was otherwise proper under the Act.

OPINION OF THE ATTORNEY GENERAL


Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. The statute provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays, and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.

Your response to Mr. Clark's requests was procedurally deficient insofar as it was not issued within three working days. Some nine work days elapsed between the date of his original requests, assuming that all were submitted on April 30, and the date of the response. Allowing for delays in the mail, your response was nevertheless untimely.

Based on our review of your letters to Mr. Clark, we conclude that his original requests were misdirected, and that much of the delay in responding was occasioned by his failure to address his requests to LRC's custodian of records. KRS 61.872(3) stipulates that if the person to whom the application is directed does not have custody of the public records requested, he or she should notify the applicant, and furnish the name and address of the custodian of the records. Upon receipt of Mr. Clark's request, LRC staffers should have immediately forwarded them to you, as custodian, or in the alternative, advised him to whom his requests should be directed.

Turning to the substantive issues raised in this open records appeal, we find that you properly released all of the documents requested by Mr. Clark with the exception of those not within your custody. Consistent with KRS 61.872(3), you properly advised him whom to contact to obtain the other documents identified in this request.

With respect to Mr. Clark's question regarding his right to access to public documents as a convicted felon, we remind you that this Office has repeatedly recognized that a prison inmate has the same right to inspect public records as any other person. OAG 79-546; OAG 82-629; OAG 83-42; OAG 83-204; OAG 88-44. The identity of the requester is therefor irrelevant. Under existing law, an agency need not provide copies of records to inmates who are unable to go to the office where the records are kept because of their legal confinement, although it may elect to do so. OAG 79-466. After July 14, 1992, however, an agency will be required to supply copies of records if the applicant resides outside of the county in which the records are located, the applicant precisely describes the records, and the records are readily available within the public agency, upon receipt of a reasonable fee for making copies. KRS 61.872(3) and KRS 61.8674(2). Your response was consistent with these provisions of the open records law.

As required by law, a copy of this opinion will be sent to the requesting party, Mr. William Lee Clark. Both Mr. Clark and LRC may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL





Amye B. Majors

Assistant Attorney General

cc: Mr. William Lee Clark