NOT TO BE PUBLISHED

In re: Charles H. Plouvier/Eastern Kentucky Correctional Complex

This is an appeal from Eastern Kentucky Correctional Complex's response to Charles H. Plouvier's July 15, 1997, request for copies of the last four health inspections conducted at EKCC. On July 22, 1997, open records coordinator Michelle Nickell denied Mr. Plouvier's request "due to no money authorization being received with this request." The issue in this appeal is whether EKCC violated the Open Records Act in responding to Mr. Plouvier's request. For the reasons which follow, we conclude that EKCC did not violate the Act, and that its response was proper in all material respects.

In a follow-up letter to this office, Department of Corrections staff attorney Tamela Biggs argued that EKCC's response was both timely and substantively correct. She explained that Ms. Nickell received Mr. Plouvier's request through institutional mail on July 17, and responded by institutional mail on July 22, exactly three business days later. Because Mr. Plouvier had previously advised her that he was indigent, and no money authorization was submitted with his request, Ms. Nickel denied his request on the basis of KRS 61.874(1), requiring prepayment of copying charges for public records. Based on the reasoning set forth in OAG 91-210, we affirm EKCC's actions.

In OAG 91-210, an inmate at Kentucky State Penitentiary challenged KSP's policy of refusing to provide copies of nonexempt records until it had received payment for those copies. At page two of that opinion, the Attorney General 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.[874(1)] and KRS 61.874[(3)].

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[(3)]. Your actions were therefore entirely consistent with the Open Records Act.

See also, 92-ORD-1363; 94-ORD-90; 95-ORD-90; 95-ORD-105.

Recognizing that this prepayment policy might work a hardship on inmates, we have nevertheless held that the policy is "entirely consistent with the Open Records Act and the rule announced in Friend v Rees." 95-ORD-90, p. 2. Amplifying on this theme, we have opined:

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.

Based on the foregoing, we find that EKCC complied with the Open Records Act by responding to Mr. Plouvier's request in a timely fashion and requiring prepayment for copies of nonexempt records. Mr. Plouvier is free to resubmit his request, along with a money authorization, when he has sufficient funds in his inmate account.

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.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#777

Distributed to:

Charles H. Plouvier #120802

Eastern Kentucky Correctional Complex

Box 636

West Liberty KY 41472

Michelle Nickels

Custodian of Records

Eastern Kentucky Correctional Complex

Box 636

West Liberty KY 41472

Tamela Biggs

Office of Legal Counsel

Department of Corrections

Frankfort KY 40601