February 19, 1997

In re: William Isom Moses/Eastern Kentucky Correctional Complex

Open Records Decision

This matter comes to the Attorney General on appeal from Eastern Kentucky Correctional Complex's handling of an open records request. On January 9, 1997, William Isom Moses, an inmate at EKCC, sent a written request for copies of two upper GI radiology reports taken at a facility in West Liberty, Kentucky in 1994. On the same date, Mr. Moses completed an “Authorization to Use Inmate Account” for payment of copy fees. Having received no response to his request, Mr. Moses initiated this appeal on January 21, 1997.

Upon receipt of the Attorney General's notification of open records appeal, Department of Corrections staff attorney Tamela Biggs sent a letter to this office in which she “attempt[ed] to show that the actions taken by EKCC staff are within the parameters of KRS 61.872, 61.874, 61.880(1) and 197.025(3).” Ms. Biggs presented a time line depicting the sequence of events associated with the processing of Mr. Moses's request. That process began with the submission and receipt of his request on January 9, and ended with the release of the record through institutional mail on January 23. In the intervening period, Mr. Moses's request wound its way through the office of the open records coordinator, the medical records department, the inmate accounts office, and back to the medical records department, before being returned to Mr. Moses along with the requested record via institutional mail.

In her response, Ms. Biggs noted that the records coordinator received Mr. Moses's request on January 13 [1] and immediately forwarded it to the medical records department. On January 15, that department notified Mr. Moses that he would receive the requested record upon payment of copying fees. [2] On behalf of EKCC, Ms. Biggs argued:

A member of the Medical Records staff responded in writing on the 15th, within the requisite three day period, that the inmate would receive the available record upon receipt of proper payment. . . . EKCC personnel did not violate the Open Records Act, as KRS 61.880(1) only requires a state agency to make a determination and provide notification with the three day period. . . . The statute does not require the public agency to provide the requested document itself.

(Emphasis in original.) Insofar as EKCC sent a written response within two days, and forwarded the record to the inmate as soon as the copying fee was processed, Ms. Biggs argues that no violation occurred.

The question presented in this open records appeal is similar to the questions presented in a number of other appeals involving EKCC and its inmate population: Whether EKCC's internal policies relative to the processing of inmate requests, which result in an enlargement of the statutory agency response time, subvert the intent of the Open Records Act short of denial. KRS 61.880(4). We reaffirm the position this office took in 95-ORD-105 and 96-ORD-7, and find that its policy results in undue delays. Although EKCC may require inmates to comply with the procedure for inspection set forth at KRS 61.872, as a precondition to receiving copies of records, those procedures should be designed so as to insure timely access to nonexempt public records. Acknowledging that we cannot order EKCC to implement a new policy, or otherwise impose penalties for violations of KRS 61.870 to 61.884, we nevertheless urge the facility to revise its records inspection policies with this goal in mind.

We will not belabor this issue. We have enclosed copies of 95-ORD-105 and 96-ORD-7 for the parties' review. In particular, we direct their attention to pages 3 through 6 of 95-ORD-105, and pages 3 and 4 of 96-ORD-7. We are, however, compelled to comment on one observation made by Ms. Biggs.

On page 2 of her response to Mr. Moses's open records appeal, Ms. Biggs argues that KRS 61.880(1) “only requires a state agency to make a determination and provide notification within the three day period.” (Emphasis in original.) While this is certainly true, we believe that this provision must be read in tandem with KRS 61.872(5). That statute provides:

If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, 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.

Together, these provisions mandate both notification and records access within three days. Any delay in excess of three days must be accompanied by a detailed explanation of the cause, and notice to the requester of the place, time, and earliest date on which the record will be available. Although there are, no doubt, many practical difficulties for correctional facilities relative to compliance with these provisions, the Open Records Law does not recognize an exception for such facilities.

Where a request is made for copies of records, the facility may require prepayment of copying charges. KRS 61.872(3)(b); KRS 61.874(1). This requirement should not, however, be used to impede access to records by enlarging the statutory agency response time beyond that which is reasonably required for the conduct of business. We suggest that EKCC focus on this aspect of its records inspection policy in its effort to expedite records access. Although EKCC has made significant strides in streamlining its policy, we cannot yet say that its records policies, which in this case resulted in a nine day delay, fully comply with the procedural requirements of 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 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:

William I. Moses #67082

Eastern Kentucky Correctional Complex

Dorm 3 BL 03

P. O. Box 636

West Liberty KY 41472

Michelle Nickell

Official Custodian of Records

Eastern Kentucky Correctional Complex

P. O. Box 636

West Liberty KY 41472

Tamela Biggs

Staff Attorney

Department of Corrections

State Office Building

Frankfort KY 40601


[1] The three day delay between submission of the request and its receipt is apparently attributable to the mandatory use of institutional mail for delivery of open records requests.

[2] In his letter of appeal, Mr. Moses does not mention a January 16 response from the medical records department. Although EKCC did not provide this office with a copy, we will assume that it exists and was properly forwarded to Mr. Moses.