Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
On January 4, 2018, inmate Robert McKinney dated and submitted an Open Records Request to the Kentucky Department of Corrections ("DOC") Internal Affairs Department, seeking documents referencing a sexual assault investigation and documents referring the investigation to the Louisville Metro Integrity Unit. For reasons stated herein, we are unable to consider Mr. McKinney's appeal.
Mr. McKinney initiated an appeal with the Office of the Attorney General, by letter, on January 18, 2018. The appeal letter states that "The Department of Corrections Internal Affairs Branch has failed to respond to the Open Records Request pursuant to Chapter 61 in a time manner." Mr. McKinney noted that as of that date, the DOC "[h]as provided no document requested, nor any explanation as required by statute."
DOC responded to the appeal through counsel, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet. Ms. Barker noted that DOC received the open records request on January 11, 2018 and stamped the request with that date. She correctly noted that DOC had five (5) days, excluding weekends and holidays, in which to issue a written response, per KRS 197.025(7). 1 Ms. Barker stated that DOC sent a timely response on January 19, 2018. A copy of the January 19 response was provided to this office for review. Ms. Barker argued that the appeal was unperfected.
DOC timely issued its response, and therefore we find that the appeal is unperfected. DOC received the request on Thursday, January 11. The response would be timely up to and including Friday, January 19 due to the exclusions for Saturday, Sunday, and the Martin Luther King, Jr. Birthday legal holiday on Monday, January 15, each permitted by KRS 197.025(7). KRS 61.880(2)(a) mandates that a person submitting an open records appeal must forward a copy of the written request, and a copy of the written response denying inspection. 2 According to 40 KAR 1:030 Section 1 3 , this office is prohibited from considering a complaint that fails to complete the record by attaching the agency's written response. Mr. McKinney was required to attach a copy of that timely response to perfect his appeal, but he did not.
This office is precluded from addressing the issues presented in this appeal due to the fact that Mr. McKinney did not submit DOC's timely response as required by law. The written request and the agency's written response comprise the record upon which the Attorney General relies in reviewing the actions of the public agency. Mr. McKinney is an inmate confined to a penal facility. Therefore, KRS 197.025(3) 4 would prohibit consideration of this appeal because the inmate did not send the appropriate documents to this office within twenty (20) days of the denial. Based on this provision of law, this office is required to dismiss the appeal.
A party aggrieved by this decision shall 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