Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Little Sandy Correctional Complex ("LSCC") violated the Kentucky Open Records Act in regard to four requests made for various records. For the reasons stated below, we find this appeal untimely in part and not ripe for review as to the remainder.
The first two requests at issue, dated August 21, 2017, pertained to "documents of justification for my placement on maximum assaultive status" and "medical psych evaluations and sessions [in] July and August 2017." Both of these were denied due to Mr. Cole's inability to pay copying fees on August 23, 2017. His undated appeal was received in this office on September 26, 2017.
On October 9, 2017, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of the facility. She argues that Mr. Cole's appeal is untimely because the requests were denied on August 23, 2017. KRS 197.025(3) provides that an inmate must appeal a denial of an open records request within 20 days. In this case, those 20 days expired prior to Mr. Cole's appeal.
Because Mr. Cole is a person confined in a penal facility, and because he failed to perfect an appeal from LSCC's denial within 20 days, his appeal is untimely as to those requests, and we are foreclosed from rendering a decision on the issues raised. We find that 02-ORD-54, a copy of which is attached hereto and incorporated by reference, is controlling. See also 02-ORD-110; 03-ORD-007; 04-ORD-074.
The third and fourth requests submitted with this appeal, bearing the date September 18, 2017, pertain to transcripts of psychology sessions from July through September 2017, and "copies regarding an incident report for plastic being found in my food." Both of these requests are handwritten on original open records request forms with the yellow carbonless copies still attached.
Ms. Barker's response affirms that LSCC never received the third and fourth requests before receiving a copy of this appeal. She therefore argues that the issues in these requests were not ripe for review at the time of appeal. We find that the appeal was premature, adopting the reasoning of 11-ORD-073 (copy attached).
Since Mr. Cole is an inmate confined in a penal facility, KRS 197.025(7) grants LSCC five days, excluding weekends and legal holidays, to respond to his request. Mr. Cole's request reached LSCC only as an attachment to this appeal, and Ms. Barker indicates that LSCC has subsequently responded to the requests. Because Mr. Cole initiated his appeal before five business days had elapsed, and his appeal was therefore premature, we do not address the propriety of those responses, which at any rate do not appear in the record on appeal.
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.