NOT TO BE PUBLISHED
95-ORD-105
July 18, 1995
In re: Keith D. Phillips/Eastern Kentucky Correctional Complex
OPEN RECORDS DECISION
This appeal originated in the submission of a request for public records by Keith D. Phillips, an inmate at Eastern Kentucky Correctional Complex, to EKCC's inmate records division. On April 7, 1995, Mr. Phillips requested access to, and copies of:
1) Record of Interview Sheets from 7/27/94 to present;
2) Transfer written to Green River Correctional Complex and voided;
3) Classification Interview Sheets from 7/27/94 to present.
In a response dated April 18, Kellie Haney, Offender Records Specialist, advised Mr. Phillips that the records division had received his request. In what is apparently the standard policy at EKCC, Ms. Haney further advised:
As soon as it has been determined that the documents requested are allowed under the Open Records Act (KRS 61.870 thru 61.884), your Money Authorization form will be forwarded to the Inmate Accounts office. Once the funds have been deducted from your account and you receive a receipt stating such, you will need to contact your Caseworker so that he/she can notify the Records Office that the copies have been paid for.
All copies will be paid for prior to receiving them (KRS 61.874).
On the same date Ms. Haney notified Mr. Phillips that his request would be partially honored. She explained:
Mr. Phillips, I am granting your request for copies of record of interview sheets for the dates indicated; 12/94 to Present. You have already requested record of interview sheets for the following dates and received the copies from the E.K.C.C. records office. This also applies to classification interview records which you have also requested and received. Request for transfer granted see attached.
Record of Interview Classification Interview Records
1994-08-03 (6/84 to Present) 1994-08-30 (4/94 to Present)
1994-09-30 (7/94 to Present) 1994-12-06 (7/94 to Present)
1994-10-17 (1/94 to Present)
1994-12-06 (7/94 to Present)
1994-12-13 (11/93 to Present)
A notation in the margin of the response indicates that Mr. Phillips received this response on April 21.
In his letter of appeal, Mr. Phillips complains that EKCC's open records policies unduly impede access to public records. He notes that eleven business days elapsed between the date his request was submitted and the date he received the records he sought. This delay, he argues, directly contravenes the three day response time mandated by the Open Records Act. He questions whether EKCC can properly postpone access to records requested by inmates by requiring prepayment through inmate accounts, delivery of the account receipt to the inmate's caseworker, transmission of the receipt to the records division, and finally, issuance of the records.
Mr. Phillips also challenges Ms. Haney's assertion that EKCC is not required to provide him with a second copy of records he has previously requested and received. It is his position that the Act does not foreclose a requester from obtaining a second copy. As a peripheral issue, he asks if a requester, specifically an inmate, may assert a right to inspect a record without receiving a copy of the record.
We are asked to determine if EKCC violated the Open Records Act in responding to Mr. Phillips's request. For the reasons set forth below, and upon the authorities cited, we conclude that EKCC's response constituted a partial violation of the Act.
We begin by noting that KRS 61.880 [1] 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.
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 are 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).
"Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request." See also, OAG 91-200; OAG 92-35.
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. However, when a request is made for voluminous records, or the records are difficult to retrieve, such time limitations are virtually impossible to meet. It is apparent that the task of reproducing voluminous documents might necessitate a reasonable extension of the three-day period of limitation. OAG 76-374, at p. 5. We believe that a determination of what is a "reasonable time" for inspection and copying turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request copies of their records to insure that those individuals are afforded timely access to the records.
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 Mr. Phillips was denied timely access to the records he sought, EKCC violated the Open Records Act.
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.
By the same token, and depending on the circumstances of his confinement, an inmate may be foreclosed from asserting the right to inspect public records prior to obtaining copies. 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.
With respect to the issue of duplicative requests for the same records, this office has opined that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. We reasoned:
KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-91 this office observed:
To produce . . . records once entails some inconvenience to the agency; to produce them three and four times requires a level of "patience and long-suffering" that the legislature could not have intended.
Citing OAG 77-151, p. 3. Unless Mr. Phillips can explain the necessity of reproducing the same records which have already been released to him, such as loss or destruction of the records, we can see no reason why EKCC must satisfy the same request a second time.
Mr. Phillips and Eastern Kentucky Correctional Complex 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.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
res/555
Distributed to:
Kellie C. Haney
Offender Records Specialist
Eastern Kentucky Correctional Complex
P.O. Box 636
West Liberty, KY 41472
Keith D. Phillips #100289
Eastern Kentucky Correctional Complex
P.O. Box 636
West Liberty, KY 41472
[1]KRS 61.880(1) provides in full:Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.