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 actions of the Kentucky State Penitentiary relative to Uriah M. Pasha's June 24, 2013, request for a "copy of the Warden's Review of Grievance No # [sic] 13-03-056-G" violated the Kentucky Open Records Act. Mr. Pasha asserted that "KSP's Grievance Coordinator failed to follow CPP 14.6 to allow inmate Aaron Rivers # 126638 to represent" him upon transfer. By letter dated July 9, 2013, 1 Mr. Pasha initiated this appeal. Because the Department of Corrections "is one agency and all checks are made payable to the Kentucky State Treasurer," and correctional facilities under the jurisdiction of the DOC "are connected by the Ky. Offenders Management System (KOMS), " Mr. Pasha contended that "all documents are lodged thereon and can be electronically transferred in seconds." Accordingly, he argued, "[o]nce I submit my request and have my Classification Treatment Officer sign off on it the agency has received my request and can fax my response. We no longer have to wait on the U.S. Postal Service snail mail. "
Upon receiving notification of Mr. Pasha's appeal from this office, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of KSP. Ms. Barker noted that Mr. Pasha's request was actually received at KSP on July 11, 2013, as the date stamped copy attached to her July 15 response confirmed. 2 KSP "has no control over when an inmate dates a request or how long it takes a request to reach it by mail, " she argued. Ms. Barker correctly asserted that KSP has "five calendar days, excepting Saturdays, Sundays and legal holidays pursuant to KRS 197.025(7) for a response. A response to the request is not due until July 18." 3 Mr. Pasha failed to provide a copy of the agency's response per KRS 61.880(2)(a), she observed, as the request had not been received nor had a response been issued. Quoting the language of that statute and 40 KAR 1:030, Section 1, Ms. Barker asserted that because Mr. Pasha failed to submit documentation required under KRS 61.880(2)(a) and the corresponding regulation, this office should not consider his appeal. She further explained that Mr. Pasha made "incorrect allegations concerning access to his inmate account and access to the grievance record he requested. Nothing in the Open Records Act requires a government agency to fax a record request to the actual custodian for a requester to save him from having to mail it himself." Inmate grievance records are not maintained in KOMS, Ms. Barker explained, "and have to be requested from the institution where the grievance was filed since that institution maintains the grievance records." Mr. Pasha essentially asks that his CTO be considered the custodian of all records maintained at every institution and office by the DOC; however, nothing in the Open Records Act requires that, Ms. Barker correctly observed, "and it is impracticable given the size and number of locations maintained by the DOC." This office finds the position of KSP entirely correct.
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 unquestionably narrows the window of opportunity in which an inmate may appeal the disposition of his request by DOC or a correctional facility such as KSP, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 11-ORD-073, p. 3. This office has recognized as much in prior decisions, including 13-ORD-011 (In re: Uriah Pasha/Kentucky State Reformatory, rendered January 16, 2013), and must reach that result again here. See 04-ORD-022; 11-ORD-073. 4
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 M. Pasha, # 092028Duke PettitAmy V. Barker
Footnotes
Footnotes
1 This date was presumably incorrect as the Attorney General received his letter on that date.
2 [A] factual dispute concerning the actual delivery and receipt of . . . [an] open records request" cannot be conclusively resolved in this forum. 02-ORD-226, p. 2; 12-ORD-069. However, the record on appeal in this case validates the position of KSP and contains nothing to justify questioning the veracity of the agency or suggest bad faith on its part.
3 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.
4 KSP issued a timely written response to Mr. Pasha's request on July 15, advising that the subject grievance could not be located; Ms. Barker provided this office with a copy upon request. Although KSP correctly noted that a public agency cannot produce a nonexistent record for inspection or copying (see 11-ORD-122) and returned Mr. Pasha's check to him, it failed to establish that a proper search was conducted (see 11-ORD-036) or explain the reason for the apparent loss or destruction of the record (see 13-ORD-024). However, Acting Grievance Coordinator Skyla Grief advised in a separate memorandum of the same date that the "original documents for Grievance # 13-03-056-G have been misplaced. . . . Internal tracking indicates that the Warden did respond after the committee hearing, but the grievance office did not enter the log as being sent to grievant." Therefore, Ms. Grief advised, Grievance # 13-03-056-G is being re-filed by this office. . . . A warden's response based upon this information will be re-issued to you in the near future." Accordingly, this office trusts that issues which prompted this appeal have been or will be satisfactorily resolved with production of the reissued grievance.