NOT TO BE PUBLISHED
96-ORD-67
March 26, 1996
In re: Franklin France/Kentucky State Police
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Kentucky State Police relative to Franklin France's October 28, 1996, request for copies of numerous records relating to two (2) separate Clay County Circuit Court indictments.
Diane Smith, Official Custodian of Records for the Kentucky State Police, stated she never received Mr. France's request. On March 11, 1996, this office provided Ms. Smith with a copy of Mr. France's request. Ms. Smith responded to Mr. France's request in a letter dated March 12, 1996. Relying on KRS 61.874(1) and KRS 61.872(3)(b), Ms. Smith advised Mr. France to “forward a check made payable to the Kentucky State Treasurer in the amount of $10.90 (79 pages at ten cents per page plus $3.00 postage) . . . ” to the State Police at which time she would forward copies of the requested records to him.
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act by requiring advance payment of reproduction and copying charges. For the reasons set forth below, and based on the authorities cited, we conclude that the Kentucky State Police properly required payment of reasonable fees attendant to his request. However, our review of Mr. France's request and Ms. Smith's response suggests that certain records he requested may not be in the custody of the Kentucky State Police. If this is the case, the Kentucky State Police should so advise Mr. France and notify him of the name and location of the official custodian of those records. KRS 61.872(4)
In OAG 91-210, this office addressed the propriety of assessing reasonable copying charges to inmates. At page 2 of that opinion, we observed:
In Friend v. Rees, Ky App., 696 S.W. 2d 325 (1985), the Kentucky Court of Appeals addressed a similar question, holding that an inmate is entitled to a copy of an open record upon compliance with a reasonable reproduction charge. Inmate Friend asserted that he was entitled to copies at no cost under the Kentucky Open Records Act. The Court of Appeals flatly rejected his position, noting:
[T]he Chief Clerk's office offered to provide copies of . . . [Friend's] records provided he tender the fee of ten cents per page. A public agency is authorized to prescribe reasonable fees for making copies of public records. KRS 61.876(1)(c) and KRS 61.874(2).
Friend v. Rees, 696 S.W.2d at 326. (Emphasis added.) We believe this case is dispositive of the present appeal.
[The inmate] has been advised that a copy of the requested records will be released to him when he has sufficient funds in his inmate account. You have not denied his request, but have implemented the rule announced in Friend v. Rees, supra, and KRS 61.874(2). Your actions were therefore entirely consistent with the Open Records Act.
We believe that OAG 91-210 is dispositive of this current appeal. See also, 92-ORD-1363; 94-ORD-90 (copies enclosed).
KSP's policy is entirely consistent with the Open Records Act and the rule announced in Friend v. Rees, supra. It is not apropriate for this office to question the clearly expressed intent of the legislature requiring prepayment of a reasonable fee for copies. KRS 61.874(1); [1] KRS 61.872(3)(b). [2]
It should be noted that future requests to the Kentucky State Police, or any post, should be directed to Diane Smith, Official Custodian of Records, Kentucky State Police, 919 Versailles Road, Frankfort, Kentucky 40601. We urge Mr. France, and other individuals seeking access to records of the State Police, to bear this in mind.
A party aggrieved by this decision may challenge it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court but shall not be named as a party in that action or in any subsequent proceedings.
A.B. CHANDLER III
ATTORNEY GENERAL
AMYE L. BENSENHAVER
ASSISTANT ATTORNEY GENERAL
tmg/1494
Enclosures
Distributed to:
Ms. Diane Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Franklin France, #52799
Eastern Kentucky Correctional Complex
P.O. Box 636, Dorm 1BL4
West Liberty, Kentucky 41472
[1] KRS 61.874(1) provides:Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written record, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records. (Emphasis added.)
[2] KRS 61.872(3)(b) provides:By receiving copies of the public records from the public agency through the mail. The public agency shall mail 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.