Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Luther Luckett Correctional Complex ("LLCC") violated the Kentucky Open Records Act in the disposition of Kurt Lowe's two September 14, 2017, requests. Mr. Lowe first requested "to inspect written complaint to deputy warden Jessie Ferguson, about Cathy Buck and Grievance Appeals to the Commissioner, along with all related documents and communications about this matter (electronic and paper/emails, etc.)." (Emphasis in original.) Mr. Lowe also requested "to inspect my 8/1/17 theft report and all related documents to the investigation and outcome, or determinations made by LLCC officials." (Emphasis in original.) In a combined response dated September 21, 2017, LLCC advised Mr. Lowe that his request was received on September 15, 2017; however, "[w]ithin the timeframe of five business days to have this processed, you were transferred to another institution." LLCC further advised that both requests were being closed and notified Mr. Lowe to contact Northpoint Training Center ("NTC") if he needed additional information. By letter dated September 27, 2017, Mr. Lowe initiated this appeal. Mr. Lowe challenged the timeliness of the agency's response and further disputed that NTC would be able to assist him because NTC does not possess the records.
Upon receiving notification of Mr. Lowe's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of LLCC. Ms. Barker first advised that LLCC received both of Mr. Lowe's September 14, 2017, requests on September 15, 2017, and issued a written response within five days "after receipt of the request, excepting Saturdays, Sundays, and legal holidays, " per KRS 197.025(7). 1 The record on appeal confirms that fact. Each request is date stamped for September 15, 2017, a Friday, and LLCC sent its combined response on September 21, 2017, the following Thursday, or the fourth working day following its receipt of the request. Thus, LLCC complied with KRS 197.025(7). See also 16-ORD-259 (applying the "computation of time statute," KRS 446.030(1)(a), in holding that agency's response complied with KRS 61.880(1) and was timely under the Open Records Act).
As Ms. Barker correctly noted, the language of KRS 197.025(7) is controlling as it was "amended in 2007 to include the notwithstanding language and change what is required in the response by the [Department of Corrections and facilities under its jurisdiction]. The language in this statute controls what is required by DOC [and LLCC] staff because of the notwithstanding language. " Citing Com. Ex rel.
Conway v. Thompson, 300 S.W.3d 152, 166 (Ky. 2009), Ms. Barker observed that "[n]otwithstanding suspends (budget bill) or ends the applicability of the other statute that would normally apply." This office agrees that "LLCC, an institution of the DOC, correctly applied KRS 197.025(7). KRS 197.025(7) does not require that the inspection be within the five days. It requires that the response be made within the five days. 17-ORD-188." See 16-ORD-047. LLCC sent a response to Mr. Lowe within the statutory timeframe of five days; however, because Mr. Lowe was transferred on the date when the response was directed to him, LLCC could not afford him the opportunity to inspect records per his request. 2
Citing a line of decisions by this office, recognizing that an inmate "must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records, " including 95-ORD-105 and 15-ORD-005, Ms. Barker correctly noted with regard to conducting inspection of records, that "an inmate does not have a right to choose the time of inspection or transfer to another institution." For example, by virtue of his confinement an inmate "may be foreclosed from exercising the right to inspect public records prior to obtaining copies." 05-ORD-080, p. 4; 15-ORD-005. "Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined. " 95-ORD-105, p. 3; 05-ORD-080; 09-ORD-138. Consistent with governing precedents, the Attorney General finds no error in the agency's position that Mr. Lowe is not entitled to conduct on-site inspection of the records in dispute insofar as the records exist only at LLCC.
Mr. Lowe references two requests pertaining to records from his inmate account by separate letter dated September 27, 2017; however, Mr. Lowe did not attach either of those requests. 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. Lowe 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) . . .." Because Mr. Lowe did not include a copy of either of his other two requests, Mr. Lowe failed to perfect his appeal in accordance with KRS 61.880(2)(c), and 40 KAR 1:030 Section 1 precludes the Attorney General from reviewing his purported appeal. The remaining issues that Mr. Lowe raised in his perfected appeal dated September 28, 2017, regarding purported instances of records concealment, fraud, etc. are simply not justiciable in this forum. See 14-ORD-083; 17-ORD-086.
Either party may appeal this decision 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 must 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.
2 Ms. Barker also noted that Mr. Lowe is correct in asserting that he cannot inspect any record insofar as it exists only at LLCC; however, Mr. Lowe is not correct in asserting that NTC, his current institution, is unable to assist him to the extent records he sought are maintained in his inmate file in the Kentucky Offender Management System ("KOMS"). A letter to Deputy Warden Ferguson and his response to Mr. Lowe, which appear to be responsive to Mr. Lowe's second request, are currently maintained in KOMS, and he can still request copies from LLCC if any records exist only at LLCC.