Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Kurt Lowe initiated this appeal by letter dated September 12, 2017, challenging the disposition by Luther Luckett Correctional Complex ("LLCC") of his July 18, 2017, request for "[t]he 'entire' unedited and unredacted electronic and paper [Kentucky Offender Management System ("KOMS")] file for Kurt J. Lowe # 284794, up to and including but not limited to: memos, notes, messages and all attachments, communications between [Kentucky Department of Corrections' ("DOC")] Central Office in Frankfort to and from all [DOC] staff at [Green River Correctional Complex ("GRCC," LLCC] and others." On August 24, 2017, LLCC Offender Records Specialist Heather McManis advised, "Inmate's electronic file was printed and I/M Lowe was given the opportunity to view everything in his electronic file and he refused to view it on this date. Request closed." 1 By request dated August 28, 2017, Mr. Lowe asked for "[a]ll 'software, and 'media,' and 'mechanical processing' in its entirety, contained in KOMS for Kurt J. Lowe # 284794, pursuant to KRS 61.870(2)(3)(7)(8), KRS 61.872 KRS 61.884." On the same day, LLCC advised that "Tara Wilkins, OIS, spoke to CTO Sewell concerning this request as it was vague. CTO Sewell responded inmate wants to sit at a computer and view his electronic file in KOMS. Request is denied ." The hard copy of Mr. Lowe's August 28 request also contained a second notation confirming that "all electronic copies have [been] printed and I/M refused to view."
On August 29, 2017, Mr. Lowe made a request "to review physically electronic KOMS file (see attached initial request 8/28/17)." LLCC denied Mr. Lowe's August 29 request on August 30, noting that his request "was previously submitted on 8/28/17 and denied on 8/29/17." This office received Mr. Lowe's letter of appeal on September 18, 2017. 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, in relevant part, as follows:
Inmate Lowe's appeal cannot succeed since he filed his appeal with the Attorney General after the twenty-day statutory timeframe set forth in KRS 197.025(3) governing inmate open records appeals. Inmate Lowe attaches two requests to view his inmate file in KOMS using somewhat different language, but seeking the same records. The response to his first request was sent on August 24. Pursuant to KRS 197.025(3), the twenty-day timeframe in which Inmate Lowe could file an appeal ended on September 13, 2017. The appeal letter does not appear to have been received by the AG until after the appeal time had elapsed. Since inmate Lowe did not file his appeal with the Attorney General until after September 13, he is barred from the open records appeal process. Making subsequent requests for the same records does not extend the time allowed for the appeal. [Citations omitted.]
When viewed in light of the record on appeal, KRS 197.025(3) is dispositive.
LLCC was correct in asserting that Mr. Lowe failed to challenge the agency's denial within twenty (20) days per KRS 197.025(3), pursuant to which:
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.
LLCC responded to Mr. Lowe's July 18, 2017, request on August 24, 2017. This office received Mr. Lowe's appeal on September 18, 2017, beyond the statutory period of 20 days. 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); 15-ORD-225. "Such appeals are subject to automatic dismissal." 12-ORD-121, p. 2 ("Whatever hardship this may work on the inmate, the twenty day deadline for submission of a perfected open records appeal is not 'tolled' during the period of time that elapses between submission of a deficient appeal and submission of an appeal correcting these deficiencies."); 12-ORD-144; 12-ORD-203. A "subsequent request for the same records does not revive the appeal rights forfeited by an inmate's previous failure to appeal within the allotted time." 2 16-ORD-108, p. 1; 14-ORD-054.
Because Mr. Lowe is a "person[] confined in a penal facility," and he failed to properly challenge the agency's denial of his request(s) within 20 days, Mr. Lowe's appeal, received in this office September 18, 2017, is time-barred; accordingly, this office is precluded from addressing the merits of his appeal by operation of KRS 197.025(3). See 17-ORD-134 (inmate's request was denied on May 23, 2017, and his appeal was received on June 14, 2017, beyond the permissible timeframe of 20 days). 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; 17-ORD-218.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Mr. Lowe's July 18, 2017, request was not stamped as received until August 18, 2017; the record on appeal does not contain any information regarding the reason for the apparent delay in either the sending or the receiving of the request. Because LLCC issued a written response within five working days of when the request was actually received, its response was timely per KRS 197.025(7).
2 Even assuming that Mr. Lowe's August 28, 2017, request was not duplicative, for the sake of argument, his appeal was not received until September 18, 2017, and was therefore untimely regardless of whether the August 24, 2017, denial or the August 28, 2017, denial was being challenged. Mr. Lowe's August 29, 2017, request was unquestionably duplicative.