Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Division of Probation and Parole violated the Kentucky Open Records Act in its refusal to provide records in response to James Coitrone's October 27, 2015, request for records. Mr. Coitrone submitted an Open Records request to the Simpson County Probation and Parole Office. "I want a complete copy of any Special Supervision Report(s) for Case 06-CR-303 out of Warren County that was supervised in Simpson County. Probation was revoked on 09/28/2012. All reports were filed in the Warren Circuit Court." A substantially identical request, also dated October 27, 2015, was addressed to the Warren County Probation and Parole Office.
By letter of November 6, 2015, Mark Stonex, Administrative Branch Manager-WEST, Division of Probation and Parole, replied, "Per KRS 439.510 the document(s) requested are exempt from Open Records and cannot be disclosed. Due to the aforementioned circumstance; your request must be denied."
Mr. Coitrone's appeal, dated July 22, 2016, to Mr. Stonex's denial was received by the Office of the Attorney General on July 29, 2016. Also included in Mr. Coitrone's appeal was a letter dated November 18, 2015, addressed to the Attorney General, appealing Mr. Stonex's denial. In that letter, Mr. Coitrone stated that
The Probation and Parole reports requested were submitted as facts collected by the Probation Officer to the Warren Circuit Court to be used to violate the inmate's probation. Once said reports were submitted to the court for consideration, they became defacto public record of the proceeding. And as such are open to inspection and copying by the public.
Upon receipt of this office's notification of receipt of the open records appeal, Catherine M. Stevens, Staff Attorney, Justice and Public Safety Cabinet, responded, by letter dated August 12, 2016, on behalf of the Division of Probation and Parole.
Ms. Stevens' letter states that both of the initial records requests from Mr. Coitrone were received by the Division of Probation & Parole on November 2, 2015, and that a timely response was sent on November 6, 2015, to Mr. Coitrone by Mark Stonex, Administrative Branch Manager-WEST, Division of Probation & Parole. The letter from Mr. Stonex stated that records could not be disclosed pursuant to KRS 439.510. 1 Ms. Stevens stated that, under KRS 439.510, information obtained by probation and parole officers in the discharge of their duties is privileged. She also pointed out that Mr. Coitrone filed his appeal outside the time allowed by statute, as KRS 197.025(3) requires an inmate to appeal denials of Open Records requests to the Office of the Attorney General within twenty days of the denial. Ms. Stevens acknowledged the letter of November 18, 2015, that was included in Mr. Coitrone's appeal of July 22, 2016: "Although Mr. Coitrone mentions a November 18, 2015 letter of appeal, it is not of record."
The pertinent statute cited by Ms. Stevens is KRS 197.025(3), which provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.
Ms. Stevens also references decisions of this Office which have determined that appeals, by inmates, mailed or sent to the Attorney General outside of the 20-day period following the denial are untimely and must be dismissed.
The Office of the Attorney General has conducted a good faith search calculated to find receipt of the letter of November 18, 2015, that was attached as part of Mr. Coitrone's appeal. The search failed to find evidence that the letter was ever received by this Office. As neither the Justice and Public Safety Cabinet, nor the Office of Attorney General can document that the letter dated November 18, 2015, was ever received, we must conclude that the letter lacks sufficient credibility to establish that Mr. Coitrone timely filed an appeal of Mark Stonex's letter of November 6, 2015.
Because Mr. Coitrone is "a person confined in a penal facility," and he failed to challenge Mark Stonex's denial of his request within twenty days, Mr. Coitrone's appeal is untimely; this office is therefore precluded from addressing the merits of his appeal by operation of KRS 197.025(3). To hold otherwise would circumvent the intent of the General Assembly as expressed in KRS 197.025(3). In our view, 07-ORD-058 and 08-ORD-209 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. As in those cited decisions, the record on appeal here lacks any credible evidence concerning the delivery and receipt of the letter dated November 18, 2015, for the Attorney General to determine that the appeal was filed in a timely manner. As Mr. Coitrone's appeal is time-barred, we will not consider the merits of his appeal. Accordingly, the appeal is denied.
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 proceedings.
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