NOT TO BE PUBLISHED
96-ORD-178
August 22, 1996
In re: Tony Graves/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 Tony Graves's request for copies of numerous records relating to the arrest and conviction of Alex Bernard Tooley.
On August 5, 1996, this office wrote to Diane Smith, Official Custodian of Records for the Kentucky State Police, informing her that Mr. Graves had not yet received a response to his open records request. On August 8, 1996, this office received a letter from Major Gail L. Williams, Legal Officer for the Kentucky State Police. In his letter, Major Williams informed this office that Mr. Graves's request was never received. On August 8, 1996, the Kentucky State Police responded to Mr. Graves's request by advising him that the information he requested would be forwarded to him after he remitted $7.79 to the Kentucky State Police to cover the cost of 54 copies @ ten cents per page, plus $2.39 for postage.
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act by requiring advance payment for 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 Mr. Graves's request.
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, along with the court's opinion in Friend, is dispositive of this current appeal. See also, 92-ORD-1363; 94-ORD-90 (copies enclosed).
The Kentucky State Police Department's policy is entirely consistent with the Open Records Act and the rule announced in Friend v. Rees. It is not appropriate for this office to question the clearly expressed intent of the legislature requiring prepayment of a reasonable fee for copies. KRS 61.874(1); KRS 61.872(3)(b).
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
881
Enclosures
Distributed to:
Tony Graves, #116986
Otter Creek Correctional Center
P.O. Box 500
Wheelwright, Kentucky 41669-0500
Diane Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Major Gail L. Williams
Legal Officer
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601