Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Meetings Decision
Stacey Spencer initiated this appeal by letter dated November 17, 2015, challenging the denial by the Kentucky State Reformatory of a written request he purportedly made for a "copy of the records involved in my disciplinary action." Mr. Spencer included a copy of a "Disciplinary Report Form Part II -- Hearing/Appeal" dated August 26, 2015, and the November 9, 2015, response from KSR Offender Information Specialist William Mustage advising Mr. Spencer that items 1, 2, and 3 of his request were denied on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), as the items "contain information and details that would enable someone to identify confidential informants." However, no written request was included among the attachments to Mr. Spencer's appeal.
Upon receiving notification of Mr. Spencer's appeal from this office, Staff Attorney Catherine M. Stevens, Justice and Public Safety Cabinet, responded on behalf of KSR. Quoting the mandatory language of KRS 61.880(2)(a) and 40 KAR 1:030, Section 1, Ms. Stevens asserted that Mr. Spencer failed to perfect his appeal concerning the request in dispute as he did not submit a copy of that request. Accordingly, KSR maintained that Mr. Spencer's appeal should not be considered. Even assuming that Mr. Spencer had perfected his appeal, however, KSR reiterated that "records sought could not be released . . . because the material contains information of a nature that cannot be released to an inmate because of a security risk." KSR cited prior decisions of this office in arguing that the Attorney General "should defer to the reasonable exercise of discretion by the [Department of Corrections]." This office makes no finding relative to KRS 197.025(1) but agrees with KSR that Mr. Spencer 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. Spencer, an inmate confined in a penal facility, is required 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) . . . ." KRS 197.025(3). Because Mr. Spencer failed to provide this office with a copy of his written request, his appeal is deficient relative to same and this office is therefore precluded from addressing the merits of the agency's November 9, 2015, denial per KRS 61.880(2)(a) and 40 KAR 1:030, Section 1. See 11-ORD-153; 14-ORD-001.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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.