Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Uriah M. Pasha initiated this appeal by letter dated December 2, 2014, challenging the alleged failure of the Department of Corrections to issue a written response within five days, excluding weekends and holidays, of receiving his undated request for a copy of the November 6, 2014 memorandum that he mailed to the Classification Branch Manager, a copy of the letter that he submitted to same on November 14, 2014, his appeal of the Warden's decision, including all documents attached thereto, and a copy of the Classification Branch Manager's response(s) to his correspondence. Upon receiving notification of Mr. Pasha's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of DOC. Ms. Barker advised that DOC Offender Information Services received Mr. Pasha's request on November 24, 2014, as the date stamped copy attached to her December 9, 2014 letter confirmed. She correctly noted that DOC had five days, excluding weekends and holidays, in which to issue a written response under KRS 197.025(7). 1 DOC responded on December 4, 2014, the sixth business day after it received the request. 2 However, Mr. Pasha initiated his appeal on December 2, or the fourth business day after DOC received his request. Accordingly, he was unable to provide this office with a copy of the agency's response. 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 4 response from DOC with his appeal, in accordance with KRS 61.880(2), this office should not consider his appeal. This office agrees with DOC that Mr. Pasha must "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 under its jurisdiction, "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 appeal. See 04-ORD-022; 11-ORD-073; 13-ORD-011.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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, 092028Jonathan HallAmy V. Barker
Footnotes
Footnotes
1 State government offices were closed for Thanksgiving on Thursday, November 27, 2014, and Friday, November 28, 2014.
2 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.