Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in its disposition of inmate Newell Stacy's open records request dated August 29, 2017. For the reasons stated below, we are unable to consider Mr. Stacy's appeal of his request.
Newell Stacy initiated this appeal by letter, received by this Office on September 11, 2017, challenging the alleged failure of EKCC to issue a written response to his request for a copy of:
[A]ny and all tangible material items pertaining to the denial and/or rejections of my visitor Susan Gooch, and/or with my visitor Newell Stacy, # 150228, on August 28, 2017, not limited to extraoccurence [ sic ] reports, occurrence reports, incident reports, memorandum(s), correspondence(s) and/or any other material item(s), document(s), record(s) of both undersigned.
The request was signed by Mr. Stacy, and for Susan Gooch by Mr. Stacy, and was dated August 29, 2017. Mr. Stacy initiated his appeal by letter dated September 7, 2017, and stated that "As of the date of this appeal I have not received any reply from EKCC custodian of records . . ." There was no copy of a written response from EKCC included with the letter of appeal.
Upon receiving notification of Mr. Stacy's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of EKCC. Ms. Barker advised that EKCC received Mr. Stacy's request on September 1, 2017, as evidenced by the date stamp on the request. She correctly noted that EKCC had five days, excluding weekends and holidays, in which to issue a written response under KRS 197.025(7). 1 EKCC staff made a timely written response on September 1, 2017. We have inspected a copy of the response from EKCC for the purpose of confirming the facts as stated by Ms. Barker and concur with her statement of the facts. Quoting the language of 40 KAR 1:030, Section 1, Ms. Barker argued that because Mr. Stacy failed to submit a copy of the September 1 response from EKCC with his appeal, in accordance with KRS 61.880(2), this office should not consider his appeal. This Office agrees with Ms. Barker that Mr. Stacy 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. (Emphasis added).
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. Stacy 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 a correctional facility, "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. Stacy failed to provide the agency's written response with his appeal, this office is precluded from addressing the issue(s) presented in his appeal. See 04-ORD-022; 15-ORD-137; 13-ORD-011.
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 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.
Footnotes
Footnotes
1 KRS 197.025(7) provides:
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.