Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory (Sex Offender Treatment Program) violated the Kentucky Open Records Act in denying Freddie Hayes' January 23, 2012, request for his "Sex Offender Evaluation Report, from evaluation requested by Parole Board in 2006 (See KOMS Case Note dated 8/4/11) on the bases of KRS 61.878(1)(i) and (j). Although governing precedents appear to validate the agency's position regarding application of these statutory exceptions to records containing personal opinions and recommendations not adopted by the Parole Board as the basis of its decision, 1 such as the report in dispute, this office is precluded from addressing the merits of the instant appeal under KRS 197.025(3) , pursuant to which:
KRS 61.870 to 61.884 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 otherwise sending the appropriate documents to the Attorney General within twenty (20) 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.
The record on appeal establishes that "DMH Sex Offender Services" received Mr. Hayes' January 23, 2012, request on January 24, 2012. Dr. James J. Van Nort, Assistant Director, Division of Mental Health, Sex Offender Services, promptly responded on January 25, 2012. This office received Mr. Hayes' appeal on March 8, 2012, well beyond the permissible 20 day time frame.
By its mandatory and express language, KRS 197.025(3) applies to any denial of a request submitted by any inmate under the Open Records Act. Because Mr. Hayes is a "person[]confined in a penal facility," and he failed to challenge the denial of his request by KSR within 20 days per KRS 197.025(3), his appeal is untimely and this office respectfully declines to address the merits of his appeal. The analysis contained in 10-ORD-031, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. See 07-ORD-263; 08-ORD-209.
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.
Distributed to:
Freddie Hayes, # 66109James J. Van Nort, Psy.D.Amy V. Barker
Footnotes
Footnotes