Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Eric Cunningham appeals the alleged failure of the Louisville Metropolitan Department of Corrections to respond to his June 26, 2014, request "to inspect the physical evidence collected in disciplinary report # 56202 pursuant to KRS Chapter 61." The Department advises that it did not receive Mr. Cunningham's request until notified by this office of his open records appeals, but that it has now compiled all responsive records. In the attached copy of its July 15 response to Mr. Cunningham, 1 the Department stated that twenty-five pages had been located "for a total cost of $ 2.50 [and t]hese can be picked up at the Main Jail, 400 S. 6th St., Louisville, KY 40202, Monday-Friday, 8:00 a.m. -- 4: 30 p.m."
Louisville Metropolitan Department of Corrections is legally obligated to respond to a written request for records upon actual receipt of such a request. Mr. Cunningham asserts that "[o]n the 26th day of June 2014 [he] requested to be allowed to inspect the physical evidence in disciplinary report # 56206 pursuant to KRS Chapter 61." The Department acknowledges receipt of the request as an attachment to the notification of Mr. Cunningham's appeal issued to it by this office on July 9, 2014, but maintains that it had not received his request prior to this date. In the absence of conclusive proof that the Department received the request, such as a certified mail receipt and proof of service confirming mail delivery or a fax cover sheet confirming successful fax transmission, we cannot resolve the factual dispute between these parties. 02-ORD-1 (agency cannot be faulted for failure to respond to request where no proof of delivery exists); compare, 09-ORD-060 (agency violated Open Records Act by failing to respond to requests whose delivery was verified by certified mail receipt and fax confirmation sheet).
The Louisville Metropolitan Department of Corrections fulfilled its obligations under the Open Records Act by notifying Mr. Cunningham that the records identified in his request had been compiled and were available at the main jail. Because Mr. Cunningham expressed a preference for inspection, the Department cannot charge him ten cents per page for copies unless, after inspection, he designates particular records for duplication. KRS 61.872(3)(a) and (b); 97-ORD-8 (recognizing that a public agency cannot "assess the requester any charge for exercising the clearly defined right to inspect public records"). Aside from this irregularity, we find that the Department did not violate the Open Records Act.
Either party may appeal this decision 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:
Eric CunninghamEdie UnderwoodBrianda A. Rojas
Footnotes
Footnotes
1 In the intervening period, Mr. Cunningham was released from custody. The Department mailed copies of its response to addresses within the department provided by Mr. Cunningham and to his last known street address. We have done the same.