Request By:
Leonel Martinez, # 216925
Teresa Peters
Angela Cordery
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary (KSP) violated the Kentucky Open Records Act in the disposition of inmate Leonel Martinez's three open records requests of May 12, 2017. For the reasons stated below, we are unable to consider Mr. Martinez's appeal.
Having allegedly received no response to his three open record requests of May 12, 2017, 1 Mr. Martinez initiated this appeal by letter dated May 22, 2017, asserting that KSP had "intentionally refused to [respond] within 5 business days of open records [requests] filed on May 12, 2017." Upon receiving notification of his appeal from this office, Angela Cordery, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of KSP, correctly observing that KRS 197.025(7) 2 affords the Department of Corrections (and facilities under its jurisdiction) five calendar days (excepting Saturdays, Sundays and legal holidays) to respond to open records requests. Ms. Cordery provided copies of Mr. Martinez's requests, which were each stamped "received" by KSP on Tuesday, May 16, 2017. Each of the stamped requests also show written responses by KSP on May 23, 2017. May 23, 2017, is the fifth day (excluding the intervening weekend days) after receipt of the requests on May 16, 2017, and so the responses by KSP were timely.
Quoting the language of 40 KAR 1:030, Section 1 3, Ms. Cordery argued that because Mr. Martinez failed to submit copies of the May 23 responses from KSP with his May 22 appeal in accordance with KRS 61.880(2), this office should not consider his appeal. This office agrees with Ms. Cordery that Mr. Martinez is "required to 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. Martinez 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 the Department of Corrections, or a correctional facility such as KSP, "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. Martinez failed to do so, this office is precluded from addressing the issue(s) presented in his premature appeal. See 04-ORD-022; 11-ORD-073.
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 proceeding.
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