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 violated the Kentucky Open Records Act in the disposition of Uriah Pasha's November 26, 2012, request for a "copy of the document Alicia Boyd[,] Administrative Section Supervisor used to determine Uriah Pasha # 092028 violated his CPTU Disciplinary Segregation Behavioral Contract dated 7/20/2010; AND a copy of the document Deputy Warden of Programs, James Coyne used to determine Uriah Pasha # 092028 violated [his] CPTU Disciplinary Segregation Contract dated 7/20/2010; and a copy of the document used to void Uriah Pasha['s] # 092028 CPTU Disciplinary Segregation Behavioral Contract." Having allegedly received no response, Mr. Pasha initiated this appeal by letter dated December 12, 2012, asserting that more than five business days had elapsed since he submitted the request. Upon receiving notification of his appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR, correctly observing that KRS 197.025(7) 1 affords the Department of Corrections (and facilities under its jurisdiction) five business days in which to respond upon receipt of a request. Ms. Barker advised that the envelope containing Mr. Pasha's request "was stamped by [Green River Correctional Complex] as 'Inmate Mail' on December 5 and as received by KSR on December 7." She included a copy of said envelope with her written response as verification. A timely written response was directed to Mr. Pasha on December 10, Ms. Barker continued, and the DOC "has no control over when items are dated or put in the mail by an inmate. " Quoting the language of 40 KAR 1:030, Section 1, Ms. Barker argued that because Mr. Pasha failed to submit a copy of the December 10 response from KSR 2 with his December 12 appeal in accordance with KRS 61.880(2), this office should not consider his appeal. This office agrees with KSR that Mr. Pasha is "required to comply with both the statute and the regulation concerning the documents he must submit in order to pursue an appeal."
KRS 61.880(2)(a) establishes the requirements and timeline for an Open Records Appeal. That statute provides:
If 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. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
In sum, the written request and the agency's written response, if any, comprise the record upon which the Attorney General relies in reviewing the actions of a public agency. Thus, 40 KAR 1:030, Section 1 provides that "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial."
Mr. Pasha is an inmate confined in a penal facility, and KRS 197.025(3) therefore requires him to "challenge any denial of an open records request with the Attorney General by mailing or otherwise 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) . . . ." While this provision narrows the window of opportunity in which an inmate may appeal the disposition of his request by DOC or a correctional facility such as KSR, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 11-ORD-073, p. 3. Because Mr. Pasha failed to do so, this office is precluded from addressing the issue(s) presented in his premature appeal. See 04-ORD-022; 11-ORD-073.
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:
Uriah Pasha, # 092028Marc AbeloveAmy V. Barker
Footnotes
Footnotes
1 KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.
2 Ms. Barker subsequently provided this office with a copy of the December 10 response of KSR in which Offender Information Specialist William Mustage advised him per KRS 61.872(4) that any existing responsive documents would be in the possession of Green River Correctional Complex and provided him with contact information for that facility.