April 1, 1996

In re: William Smith/Eastern Kentucky Correctional Complex


This matter comes to the Attorney General on appeal from the response of Eastern Kentucky Correctional Complex to William Smith's February 8, 1996, request for a copy of the “final investigation of incident of 12-25-95 per warden [sic] memorandum dated January 2, 1996 . . . .” On behalf of EKCC, Michelle Nickell, records custodian, denied Mr. Smith's request because Mr. Smith did not submit a money authorization form. Relying on KRS 61.874(1), she explained that “copies must be paid for prior to receiving them.” On February 20, Mr. Smith resubmitted his request for the same document, and included a money authorization form. That request was granted on February 23, and a copy of an investigation report released to Mr. Smith. Mr. Smith questions EKCC's initial delay in releasing the record, and its subsequent failure to provide him with the “[ ]correct investigation” report.

We are asked to determine if EKCC violated provisions of the Open Records Act in responding to Mr. Smith's request. For the reasons set forth below, and upon the authorities cited, we conclude that EKCC's responses were entirely consistent with the Act. With respect to Mr. Smith's assertion that EKCC failed to provide him with the correct record, we note that this office is not equipped to resolve a factual dispute relative to the release of the wrong record. KRS 61.880(2)(a) provides that at the request of a complaining party, the Attorney General shall review that party's request, and the public agency's response, and issue “a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.” Given this specific statutory mandate, we decline to render a decision on this portion of Mr. Smith's appeal.

In a recent decision, this office dealt with the propriety of EKCC's policies relative to prepayment for copies of public records. 95-ORD-105. It is instructive to quote from that decision:

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.

Nevertheless, it is the opinion of this office that EKCC may properly require prepayment for copies of public records which are requested by inmates. KRS 61.872(3)(b) provides that public agencies must:

[M]ail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.

Additionally, KRS 61.874(1) provides:

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

These statutes contain no provision for waiver of the prepayment requirement for inmates. It is, in our view, entirely proper for the facility to require prepayment, and to enforce its standard policy relative to assessment of charges to inmate accounts, despite the delays this may entail. As noted, however, this holding should not be construed to authorize any delay other than that which is reasonably necessary to insure prepayment of copying charges.

95-ORD-105, p. 5-6. We believe that this decision is controlling. Because Mr. Smith failed to submit a payment authorization form with his original request, EKCC was justified in denying that request. When he submitted the form with his second request, EKCC attempted to honor that request.

As noted, we are not empowered to resolve the factual dispute between these parties relative to the record released. One obvious advantage to inspection of public records prior to copying is the assurance it offers the requester that he will obtain the record he seeks. Obviously, Mr. Smith, an inmate at EKCC, may be foreclosed from exercising this right. As we also noted in 95-ORD-105, at page 6:

Although the statute contemplates records access by one of the means, on-site inspection during the regular office hours of the agency or receipt of the records from the agency through the mail, access via on-site inspection may pose a problem in the restrictive environment of a correctional facility. KRS 61.872(3). Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined. And, if he is prohibited from freely moving about in the facility, and therefore cannot conduct an on-site inspection in the records office, the facility is under no obligation to bring the original records to his cell for inspection.

Mr. Smith may wish to resubmit his open records request to EKCC, and formulate that request with greater precision or inspect the record prior to copying, if permitted. However, this office's review is confined to a determination of whether the agency violated provisions of the Open Records Act, and we therefore decline to render a decision in this matter.

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:

Michelle Nickell

Records Custodian

Eastern Kentucky Correctional Complex

P. O. Box 636

West Liberty KY 41472

William Smith, #94541-3BL10

Eastern Kentucky Correctional Complex

P. O. Box 636

West Liberty KY 41472