October 24, 1996

In re: James Nick Harrison/Kentucky State Penitentiary

Open Records Decision

This matter comes to the Attorney General on appeal from Kentucky State Penitentiary's handling of an open records request, and a series of follow-up requests, submitted by James Nick Harrison, an inmate at the facility. On September 3, 1996, Mr. Harrison submitted a request for various records relating to his transfer from Eastern Kentucky Correctional Complex to Kentucky State Penitentiary (KSP). On behalf of KSP, records custodian Jean Morse responded to Mr. Harrison's request two days later. Ms. Morse referenced KRS 61.874(1), and an internal policy authorizing KSP to require advanced payment for copies of records, in denying Mr. Harrison's request. She further advised him that his request was “too vague and overly broad.” Mr. Harrison subsequently made two more attempts to obtain the records relating to his transfer. Each time his request was denied because he failed to prepay for copies by submitting a commissary purchase order, or CPO, along with his request. [1]

Mr. Harrison objects to certain records policies at KSP. Specifically, he complains that KSP requires inmates to submit commissary purchase orders along with their records requests, and refuses to honor requests which are not accompanied by a CPO. This policy, Mr. Harrison maintains, results in needless delays and duplicative requests. He asks whether he can properly be required to submit the same request, with a CPO, if the CPO was not attached to his original request. KSP responds that it is an inmate's responsibility to forward both the open records request and the CPO to the custodian of records, and that Mr. Harrison failed to do this. KSP notes that Mr. Harrison has made numerous open records requests during his incarceration, and is aware of the proper procedure for submitting requests, including the necessity of submitting the CPO, along with the request, through institutional mail.

We are asked to determine if KSP's policies relative to the simultaneous submission of open records requests and CPOs violate provisions of KRS 61.870 to 61.884. For the reasons set forth below, and upon the authorities cited, we find that so long as such records policies do not unnecessarily impede access to public records, the policies conform to, and are consistent with, the provisions of the Act.

KRS 61.874(1) provides, in part:

When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate.

The challenged KSP records policy provides:

[R]equests for copies shall be accompanied by a properly signed commissary purchase order.

[A] request . . . to INSPECT rather than have copies made, shall be specific as to date, time, place and name of document if possible.

I.P.P. 06-01-01 (emphasis in original). KSP thus affords inmates access to nonexempt public records by two means: on-site inspection, or transmission of copies upon prepayment of duplication costs. KRS 61.874(1) does not require more. [2]

In 95-ORD-105, this office recognized:

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.

95-ORD-105, p. 5. Elaborating on this view, in 96-ORD-7, we observed:

[T]he Open Records Act affords [the requester] no relief from the particular hardships he has experienced as an inmate in a correctional facility where access to records is strictly governed by the Act. The Act is a double-edged sword. Although it guarantees the public the right to inspect nonexempt records, it mandates that as a precondition to inspection a requester must comply with certain procedural requirements, including submission of a written request and prepayment for copies. As we have noted, we believe that the Act was never intended to frustrate access to records, and that an agency is statutorily obligated to provide a requester with timely access at a reasonable fee. Nevertheless, we also believe that an agency is justified in enforcing the procedural requirements of the Act.

96-ORD-7, p. 4, 5.

In its response to Mr. Harrison's open records appeal, KSP described the circumstances giving rise to the appeal, noting that during a six day period he filed six separate requests for documents. In order to comply with the procedural requirements of the Open Records Act, and to avoid confusion as to which request went with which CPO, KSP insisted on submission of the CPO and the request together. On these facts, we do not believe that its actions violated provisions of the Act, or that its policies unduly impeded Mr. Harrison's access to the records sought.

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 KRS61.880(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.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

James Nick Harrison #95435

Kentucky State Penitentiary

P. O. Box 128 [5-2D-01]

Eddyville KY 42038-0128

Tamela Biggs

Staff Attorney

Department of Corrections

State Office Building

Frankfort KY 40601

Jean Morse

Custodian of Records

Kentucky State Penitentiary

P. O. Box 128

Eddyville KY 42038-0128


[1] Mr. Harrison disputes this, asserting that he submitted the required CPO with his second and third requests, and attaching copies of same to substantiate his claim. It is KSP's position that he did not submit a CPO with his second request, and did not sufficiently describe the desired records in his third request. As we have so often noted, this office is not equipped to resolve the factual dispute between the parties. Our review is confined to the legal, and not the factual, issues raised.

[2] The requirement of prepayment is also found at KRS 61.872(3)(b), which provides in part, “If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail copies upon receipt of all fees and the cost of mailing.” (Emphasis added.)