June 13, 1995

In re: Earl McFall/Kentucky State Penitentiary


This appeal originated in the submission of a request for records by Earl McFall, an inmate at Kentucky State Penitentiary, to the Penitentiary's custodian of records. On April 7, 1995, Mr. McFall requested copies of the transfer authorization form dated March 9, 1995, and all incident reports for the preceding year. Mr. McFall advised the records custodian that he is indigent, and is not required to pay for copies of records because of his "status." On behalf of the Penitentiary, Jean Morse responded to Mr. McFall's request by referring him to the correctional facility's policy 06-01-01, which requires that requests for copies of inmate records be accompanied by a properly signed commissary purchase order.

The question presented in this appeal is whether Kentucky State Penitentiary violated the Open Records Act by denying Mr. McFall copies of records pending receipt of payment for those copies. For the reasons set forth below, and based on the authorities cited, we conclude that KSP properly denied Mr. McFall's request since he was unable to pay for copies.

In December, 1991, the Attorney General issued an opinion to Mr. McFall and KSP arising out of facts which were virtually identical to the facts presented in the instant appeal. OAG 91-210. At page 2 of that opinion, we observed:

In Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals addressed a similar question, holding that an inmate is entitled to a copy of an open record upon compliance with a reasonable reproduction charge. Inmate Friend asserted that he was entitled to copies at no cost under the Kentucky Open Records Act. The Court of Appeals flatly rejected his position, noting:

[T]he Chief Clerk's office offered to provide copies of . . . [Friend's] records provided he tender the fee of ten cents per page. A public agency is authorized to prescribe reasonable fees for making copies of public records. KRS 61.876(1)(c) and KRS 61.874(2).

Friend v. Rees, 696 S.W.2d at 326. (Emphasis added.) We believe this case is dispositive of the present appeal.

Mr. McFall has been advised that a copy of the requested records will be released to him when he has sufficient funds in his inmate account. You have not denied his request, but have implemented the rule announced in Friend v. Rees, supra, and KRS 61.874(2). Your actions were therefore entirely consistent with the Open Records Act.

We believe that OAG 91-210 is dispositive of Mr. McFall's current appeal. See also, 92-ORD-1363; 94-ORD-90 (copies enclosed).

While KSP's policy may work a hardship on Mr. McFall, it is entirely consistent with the Open Records Act and the rule announced in Friend v. Rees, supra. It is not appropriate for this office to question the clearly expressed intent of the legislature requiring prepayment of a reasonable fee for copies.

Mr. McFall may challenge this decision by initiating action in the appropriate circuit court. 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.







Distributed to:

Ms. Jean Morse

Custodian of Records

Kentucky State Penitentiary

P.O. Box 128

Eddyville, KY 42038-0128

Mr. Earl McFall #83425

Kentucky State Penitentiary

P.O. Box 128

Eddyville, KY 42038-0128