Opinion
Opinion By: Andy Beshear,Attorney General;Sam Flynn,Assistant Attorney General
Open Records Decision
Johnny R. Phillips, appeals Kentucky Department of Corrections' denial of his August 14, 2016 request for records. Mr. Phillips requested "emails, text messages, images, attachments, pdf files or the like, which were sent from, or received by any, DOC Central Office or Classification Branch employee, []" generated in connection with any classification decision, transfer approvals or denials, and request ? for my participation in the DOC Kosher meals program.
DOC received Mr. Phillips' request on Friday, August 19, 2016. On Friday, August 26, 2016, the DOC responded to Mr. Phillips' open records request, per KRS 197.025(7) , 1 stating "...I am currently gathering records responsive to your request...[y]ou may expect a final response to your request to be mailed on or before September 12, 2016." Mr. Phillips initiated his appeal on August 30, 2016, claiming the DOC had "failed to respond," to his request. Notably, Mr. Phillips did not attach a copy of DOC's August 26, 2016 response to his appeal.
The appeal reached this Office on September 6, 2016. The notice of appeal was distributed September 8, 2016.
On September 12, 2016, DOC furnished its final response to Mr. Phillips' request, denying the request pursuant to KRS 61.872(6), 2 explaining that the time and costs of complying with the request "places an unreasonable burden upon the department."
On September 14, 2016, the Justice & Public Safety Cabinet requested an extension to respond to the appeal, citing caseload responsibilities, until September 21, 2016, recognizing that the "response is due [September 14, 2016]." The extension was granted. On September 21, 2016, the Justice & Public Safety Cabinet requested an additional extension until September 23, 2016, in order that they could receive a signed affidavit from an IT professional with the Commonwealth Office of Technology [COT]. This office granted the extension to September 23, 2016.
On September 23, 2016, this office received DOC's response to Mr. Phillips' appeal. Relying on KRS 61.880(2)(a) and 40 KAR 1:030, DOC argued that Mr. Phillips' appeal was premature and untimely. The DOC further relied on KRS 61.872(6), stating that Mr. Phillips' request was denied because it was duplicative and unduly burdensome, and "intended to disrupt the essential functions of the agency."
The present facts and existing legal authority validate the position that Mr. Phillips' appeal was premature, or alternatively, that his appeal was unperfected. Mr. Phillips filed his appeal to the Attorney General on August 30, 2016, and did not provide this office with a copy of DOC's August 26, 2016 response. The fact that Mr. Phillips did not submit a copy of the DOC letter with his appeal suggests either that Mr. Phillips filed his appeal before the DOC response had reached him, or that Mr. Phillips had received the DOC letter and failed to submit it with his appeal. In either case, this Office is precluded from reaching the merits of Mr. Phillips' appeal, as explained infra .
KRS 61.880(2)(a) establishes the requirements and timeline for an Open Record 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.
Further, with respect to inmates, KRS 197.025(3), states:
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.
Mr. Phillips 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) ..." By its express language, KRS 197.025(3) applies to "any denial" of a request made by an inmate under the Open Records Act.
As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962).
"While this provision narrows the window of opportunity in which an inmate may appeal the disposition of his request by DOC or a correction facility under its jurisdiction, 'it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 15-ORD-007, p. 2, citing 11-ORD-073, p. 3.
Mr. Phillips did not submit a copy of the DOC response with his August 30, 2016 appeal. Assuming Mr. Phillips submitted his August 30, 2016, appeal prior to receiving the DOC's August 26, 2016, response, Mr. Phillips' appeal is premature. See 14-ORD-010. In light of these governing principles, the mandatory and express language of KRS 197.025(3) and KRS 61.880(2), and the facts presented in this appeal, this Office is precluded from issuing a decisions on the merits of Mr. Phillips' appeal.
However, even if Mr. Phillips had a copy of the DOC's August 26, 2016 response, this Office may not issue a decision on the merits, because he failed to submit the DOC response with his appeal, per 40 KAR 1:030, Section 1.
This office has previously noted, "[i]n 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. " 15-ORD-007; 14-ORD-010. 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. Phillips was required to submit a copy of DOC's August 26, 2016 response with his appeal per KRS 61.880(2)(a) and 40 KAR 1:030, Section 1. Mr. Phillips filed his appeal to the Attorney General on August 30, 2016, but did not provide a copy of DOC's response. 3 Thus, Mr. Phillips did not perfect his appeal, per KRS 61.880(2), and this office is precluded from addressing the issue(s) presented in his appeal. See 15-ORD-007; 04-ORD-022; 11-ORD-073; 13-ORD-011.
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 must be notified of any action in circuit court, but must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 197.025(7) states:
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.
2 KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
3 Notably, to the extent Mr. Phillips could contend that the DOC's September 12, 2016 response was a denial of his request, this Office would be precluded from reaching the merits of the appeal because Mr. Phillips filed his appeal before that letter was sent, and also failed to provide this Office with a copy of that letter.