Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Kurt Lowe initiated this appeal by letter dated October 9, 2016, challenging the denial by the Department of Corrections ("DOC") of his August 15, 2016, request for "Any/All electronic/hardcopy communications including but not limited to itemized detailed phone logs, text messages, emails, fax[es], transfer authorization forms, request forms, medical mats or CCS approval messages, transfer coordinators[sic] notes, DOC iPhone images, attachments or the like, initial recalls documents, any/all of the above sent to or received from Hopkins County Jail staff, or any other state official, including 'Boone County officials[,]' Kenton County, Campbell County, and/or more specifically -- any of the above received from or sent to state senator John Schickel, or his staff. " Mr. Lowe also challenged the denial by DOC of his August 31, 2016, request for "Any/All documentation/[c]ommunications between DOC, Central Office, &/or the Classification Branch regarding/referencing Kurt Lowe's Boone [County] Cases (13-CR-710 & 15-CR-88), [and resulting] incarceration, including any/all classification/transfer decisions, notes, etc." By separate responses dated September 12, 2016, and September 15, 2016, respectively, DOC denied each request on the basis of KRS 61.872(6) with limited exceptions.
Upon receiving notification of Mr. Lowe's October 9 appeal, Staff Attorney Catherine M. Stevens, Justice and Public Safety Cabinet, responded on behalf of DOC. Quoting KRS 197.025(3), DOC noted that its response to Mr. Lowe's August 15, 2016, request was dated September 12, 2016, and its response to his August 31, 2016, was dated September 15, 2016; accordingly, the statutory timeframe of twenty days in which to appeal expired on October 2, 2016, and October 5, 2016, respectively. Because Mr. Lowe's appeal was dated October 9, DOC asserted that his appeal is time-barred under KRS 197.025(3) and the Attorney General should thus decline to render a decision. This office agrees that KRS 197.025(3) is determinative on the facts presented.
Pursuant to KRS 197.025(3):
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.
A rule of strict compliance applies to tardy appeals.
Johnson v. Smith, 885 S.W.2d 944 (Ky. 1994);
City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990). "Such appeals are subject to automatic dismissal." 10-ORD-031; 12-ORD-072; 12-ORD-203. By its mandatory and express language, KRS 197.025(3) applies to any denial of a request submitted by any inmate under the Open Records Act. Because Mr. Lowe is a "person[]confined in a penal facility," and he failed to challenge the denials by DOC within 20 days per KRS 197.025(3), his appeal is untimely and this office must respectfully decline to address the merits of his appeal. To hold otherwise would circumvent the intent of the General Assembly as expressed in KRS 197.025(3). See 02-ORD-54; 07-ORD-058; 08-ORD-209; 14-ORD-001; 15-ORD-137.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.