January 23, 1996

In re: James Nick Harrison/Eastern Kentucky Correctional Complex


This matter comes to the Attorney General on appeal from the actions of Eastern Kentucky Correctional Complex relative to James Nick Harrison's September 6, 1995, request for a copy of “Part II of the disciplinary report issued against [him] on June 29, 1995 with the Warden's response.” Mr. Harrison submitted his request to Classification and Treatment Officer Kelley Nickles, who advised him that he had not used the correct form. Mr. Nickles filled out a different open records request form for Mr. Harrison, identifying the record sought as “Part II of write up issued July 12, 1995 that includes wardens [sic] response on appeal.” Mr. Harrison states that Mr. Nickles advised him that all inmates should consult with him before making an open records request so that he could fill out the proper forms. The corrected form was received in the records office on September 6, 1995, and on the same day records officer Kellie Haney approved Mr. Harrison's request with the response, “Request granted: See attached.” Some 22 days later, Mr. Harrison continues, he received copies of records, but those records did not correspond to his original request.

In his letter of appeal, Mr. Harrison raises numerous issues relating to EKCC's handling of his request. Many of these issues, including the propriety of staying disciplinary action pending receipt of records, are not cognizable under the Open Records Act. In our view, the issues in this appeal are as follows:

Did EKCC violate provisions of the Open Records Act by requiring the use of a specific open records request form as a precondition to inspection of public records?

Did EKCC violate provisions of the Open Records Act by failing to provide Mr. Harrison with timely access to the nonexempt public records he requested?

It is the opinion of this office that both of these questions must be answered in the affirmative. EKCC may not require requesters to use a specific request form as a preconditon to inspection of records, nor may it employ routing procedures which result in an enlargement of its statutory response time. We therefore find that EKCC's actions violated provisions of the Open Records Act.

In 94-ORD-101, this office directly addressed the question of whether a public agency may require use of a specific open records request form. At pages 2 and 3 of that decision, we observed:

KRS 61.872(2) . . . provides as follows relative to the public's right to inspect documents:

Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.

While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.

A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2). The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:

1. Applicant's signature.

2. Applicant's name printed legibly.

3. Description of records to be inspected.

In OAG 76-588, copy enclosed, this office considered KRS 61.872(2) and said, in part, at page two:

Public agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted. Records which are easily described and readily available, such as tax assessment records, should not be temporarily withheld from inspection by red tape under the pretense of complying with the open records law. [1]

94-ORD-101, a copy of which is attached hereto, and incorporated by reference, is dispositive of this issue.

With respect to the issue of the timeliness of EKCC's response, we direct the parties' attention to 95-ORD-105. At page 5 of that decision, we held:

An inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. Although, as we have recently observed, `all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof,' an inmate's movements within the facility are presumably restricted, and the manner in which he conducts his financial business dictated by the facility. 94-ORD-90, p. 2; see also, OAGs 79-546, 79-582; 80-641; 82-394; 89-86; 91-129; 92-ORD-1136. Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records. This does not, however, authorize a correctional facility to adopt and implement records policies which unreasonably delay access.

The procedural requirements of the Open Records Act `are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request.' 93-ORD-125, p. 5. It is incumbent on EKCC to streamline its policies by educating its employees, including caseworkers, on the importance of providing a timely response, as well as timely access to records. To the extent that [the requester] was denied timely access to the records he sought, EKCC violated the Open Records Act.

We believe that the principles articulated in 95-ORD-105 may be extended to the instant appeal.

KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. If the agency denies all or any portion of the request, it must “include a statement of the specific exception authorizing the withholding of the record,” and briefly explain how the exception applies to the record withheld.

In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must “immediately so notify” the requester, and designate a place, time, and date for inspection “not to exceed” three days from receipt of the request, “unless 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.” KRS 61.872(5).

We therefore conclude that EKCC violated provisions of the Open Records Act by failing to provide Mr. Harrison with copies of the records identified in his request in a timely fashion. Although EKCC advised this office on October 6, 1995, that the requested record had been misplaced, and had to be retrieved from the adjustment committee and reviewed by the warden prior to its release to Mr. Harrison, he was never formally notified of the cause of the delay. EKCC does not dispute that 22 days elapsed between the date of his request and the date the records were released. Having failed to provide Mr. Harrison with the records he sought within three business days, or to explain the cause of the delay, EKCC violated KRS 61.880(1) and KRS 61.872(5).

As noted, this office is not empowered to resolve disputes relating to the imposition of disciplinary action, or staying same pending receipt of public records. Accordingly, we do not address this issue. Our review is confined to issues arising under the Open Records Act.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.







Distributed to:

Kellie C. Haney

Offender Records Specialist

Eastern Kentucky Correctional Complex

P. O. Box 636

West Liberty, Kentucky 41472

James Nick Harrison, #95435

Eastern Kentucky Correctional Complex

P. O. Box 636

West Liberty, Kentucky 41472


[1] We note, in passing, that the Open Records Act does not require an inmate to enlist the aid of his classification and treatment officer in formulating and drafting his request. Again, these procedures may be desired or suggested, because they expedite a response, but they cannot be required as a precondition to inspection. The fact that the request prepared by Mr. Nickles for Mr. Harrison contained at least two significant modifications of Mr. Harrison's original request, and may have resulted in EKCC providing him with the wrong records, suggests the potential pitfalls of such a requirement.