Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Kurt J. Lowe initiated this Open Records Appeal challenging the alleged inaction of Northpoint Training Center ("NTC") upon receipt of his October 27, 2017, request to "[p]hysically [i]nspect the entire unedited contents of the electronic [Kentucky Offender Management System ("KOMS")] File or Account for Kurt J. Lowe # 284794, to make Abstracts or Memoranda of the records inspected, and to be provided with the reasonable cost of duplication of the records inspected, upon completion of inspecting them." 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 NTC. Ms. Barker initially noted that Mr. Lowe's copy of the October 27 request contains a note that did not appear on the request that the NTC Open Records Coordinator received. The copy of the request by NTC attached to Ms. Barker's Appeal response was date stamped as received in the NTC Records Department on October 31, 2017. Ms. Barker correctly observed that NTC had five days, excluding weekends and holidays, in which to respond under KRS 197.025(7). 1 NTC issued a timely written response on November 6, 2017 (the fourth working day following receipt). 2 Because Mr. Lowe failed to include a copy of the November 6, 2017, response by NTC, Ms. Barker asserted that his Appeal is both premature and unperfected. Existing legal authority validates her argument.
KRS 61.880(2)(a) establishes the requirements and timeline for initiating 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) . . . ." While this provision narrows the window of opportunity in which an inmate may appeal the disposition of his request by DOC or a correctional facility under its jurisdiction, such as NTC, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 3 11-ORD-073, p. 3. Because Mr. Lowe failed to do so, his Appeal is unperfected and premature. See 04-ORD-022; 11-ORD-073; 13-ORD-011; 15-ORD-007. Additionally, Mr. Lowe submitted a request nearly identical to his current request on July 18, 2017, and this office found his appeal of the agency's denial was untimely in 17-ORD-250. This office also deemed his appeal untimely as to his largely duplicative August 28, 2017, request and his "unquestionably duplicative" August 29, 2017, request in 17-ORD-250. Here, as before, this office concludes that 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.'" 17-ORD-250, p. 3 (quoting 16-ORD-108, p. 1). See 14-ORD-054.
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 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 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 Mr. Lowe attached a copy of the November 6, 2017, response by NTC to his December 5, 2017, supplemental correspondence. In that response, NTC advised Mr. Lowe that his "current housing segregation housing assignment prohibits you from moving freely about the facility; therefore, you cannot conduct an on-site inspection in any institutional office." Citing 03-ORD-152 and 05-ORD-052, NTC correctly observed that it has "no obligation to bring the original records to your cell for your review or prepare you for and escort you to a holding cell to conduct review of the records requested." See 14-ORD-162.
3 Even assuming that Friday, October 27, the date on which "CTO Fox" apparently received the request, was the relevant date for the purpose of determining timeliness under KRS 197.025(7), NTC was not required to send a written response until Friday, November 3, and therefore it's unlikely that Mr. Lowe would have received it by Monday, November 6, the date of his Appeal.