Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections violated provisions of the Open Records Act in the disposition of inmate John Bruce Campbell's October 7, 2005, appeal of an open records request purportedly submitted by his wife, Judith Ann, on May 7, 2005. For the reasons that follow, we find that the Department did not violate the Act.
In a May 7, 2005, letter that appears to have been prepared on the same typewriter as Mr. Campbell's letter of appeal, and bearing numerous other indicia of a common origin, 1 Mrs. Campbell requested copies "of the tapes [in the possession of Investigator Jon Collett] from Jan 27th 2005 when [Mr. Collett] met with [her] husband John Bruce Campbell at the Eastern Kentucky Correctional Complex in West Liberty Kentucky, and from Feb 28th 2005 when [she] met with [Investigator Collett] and Ms. Tracy Howard." Mrs. Campbell's request was addressed to Mr. Collett.
Having received no response to Mrs. Campbell's request, Mr. Campbell initiated an open records appeal to this office on October 7, 2005, challenging the Department of Corrections' inaction relative to the request for records to which he claims entitlement. In correspondence directed to this office following commencement of Mr. Campbell's appeal, copies of which were mailed to both Mr. and Mrs. Campbell, Department legal counsel asserted that Mr. Campbell has no standing to initiate an appeal "regarding an open records request allegedly made by his wife." Alternatively, Department counsel maintained that Mr. Collett, to whom the request was purportedly directed, never received the request, and that therefore "insufficient information is presented in this appeal to resolve a factual dispute concerning the actual delivery and receipt of the open records request allegedly made by [Mr. Campbell's] wife . . . ." In support, the Department attached Mr. Collett's affidavit in which he avers that he has "thoroughly reviewed [his] records and find that, as of [October 21, 2005, he had] not received the May 7, 2005, open records request that Mr. Campbell alleges was made by his wife . . . ." Each of these arguments is persuasive.
With reference to the second argument advanced by the Department of Corrections, we find that the conflicting evidentiary record precludes us from resolving the factual dispute concerning the actual delivery and receipt of the request against the Department. Although Mr. Campbell asserts that Mrs. Campbell's request was sent to Mr. Collett in May 2005, he offers no proof of delivery or receipt. Mr. Collett directly controverts Mr. Campbell's statement and submits an affidavit in support of his position. The Department of Corrections is fully aware of its obligation to comply with KRS 61.880(1), as supplemented by KRS 197.025, by responding, in writing, to open records requests within five business days of receipt. If, however, the request did not reach the Department, for whatever reason, the Department cannot be faulted for its failure to respond.
With reference to the Department's argument in chief, we find that although the Open Records Act does not expressly prohibit an individual other than the individual who submitted an open records request from appealing a public agency's denial of that request, 2 as an inmate confined in a correctional facility Mr. Campbell is uniquely situated. He is, for example, foreclosed from initiating an appeal to the Attorney General unless he does so "within twenty days of the denial," and he is required to exhaust his administrative remedies before proceeding to circuit court. KRS 197.025(3). Moreover, an inmate is foreclosed from inspecting or obtaining copies of public records that do not "contain[] a specific reference to that [inmate] ." KRS 197.025(2). In at least two open records decisions, this office "pierced the veil" of the purported requester to uncover the actual identity of the individual seeking the records, finding sufficient objective indicia of an identity of purpose between the "requester" and an inmate to affirm denial of the request for records to which the inmate would not have been entitled pursuant to KRS 197.025(2), notwithstanding the fact the requests were submitted by a family member. See 00-ORD-182 and 02-ORD-82.
Judith Ann Campbell is related by marriage to John Bruce Campbell, and the request she purportedly submitted to the Department was almost certainly prepared on the same typewriter, using the same format, and containing the same grammatical and punctuation errors. We proceed no further in our analysis. It defies logic to suggest that her interest in these records is that of a disinterested third party, or otherwise purely academic. Based on the reasoning set forth in 00-ORD-182 and 02-ORD-82, we find an identity of purpose between Ms. Campbell and Mr. Campbell and hold that the Department cannot be required to disclose records to her which Mr. Campbell would not be entitled to inspect under the prohibitions contained in KRS 197.025(1) and (2).
Given the even greater likelihood that Mr. Campbell prepared the request and affixed his wife's name to it, we find that his appeal was time-barred by operation of KRS 197.025(3). That statute specifically provides:
KRS 61.880 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or sending the appropriate documents to the Attorney General within twenty days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.
To the extent that an agency's apparently inadvertent failure to respond can be equated to a denial, we find that the lapse of some five months before Mr. Campbell's appeal was initiated bars that appeal.
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.
Judith Ann Campbell313 Byrd StreetCovington, KY 41011
Jon Collett, InvestigatorDepartment of Corrections125 Holmes StreetFrankfort, KY 40601
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 In addition to the fact that the typeface is identical in both letters, the location and form of the recipient's address and the letters' dates are the same. The request is addressed as follows:
Commonwealth of Kentucky
Department of Corrections
Office of the Commissioner
Attn: Investigator Jon Collett
P.O. Box 2400
Frankfort, Kentucky 40601
The appeal is addressed as follows:
Commonwealth of Kentucky
Office of the Attorney General
Attn: Open Records Appeal Section
1024 Capitol Center Drive
Suite 200
Frankfort, Kentucky 40601-8204[.]
Both addresses appear in the upper left corner of the respective letters.
The request is dated:
May 7th 2005
The appeal is dated:
Oct 7th 2005[.]
Both dates appear in the upper right corner of the respective letters. Another indicator of the common origin of the two letters is the author's failure to use an apostrophe to denote the possessive; for example, the request references "my husbands May 3rd 2005 response," and the appeal references "Gov Fletchers Office, [and] Lt. Gov. Pences Office."
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2 Thus, KRS 61.880(2)((a) states that "[i]f a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection." It is common practice for an attorney representing an individual to initiate in his or her own name an appeal on behalf of a client whose request was denied, or an individual acting on behalf of a group of concerned citizens to initiate an appeal in his or her own name on behalf of the group.
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