Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Summary : Inmate requester failed to initiate his appeal within twenty (20) days of the denial by the Henderson County Detention Center and his appeal is therefore untimely; KRS 197.025(3) precludes the Attorney General from addressing the merits of his time-barred appeal.
Open Records Decision
The question presented in this appeal is whether the Henderson County Detention Center ("HCDC") violated the Open Records Act in denying Cody McGaha's December 26, 2017, request for the "Complete Offender Record from 7/27/17, to include [Grievances], Disciplinary Records, [and] Incident Reports named in . . . Also camera recordings of B Hall, E Hall, Booking, [and] Medical on 7/27/17 between 2100 HRS - 2300 HRS." In a timely written response, dated January 4, 2018, HCDC advised Mr. McGaha that his request would not be honored, as "disclosure of the incident report would pose a safety and security risk within the facility, due to an ongoing [Federal Bureau of Investigation ("FBI")] investigation. You may submit an open records request at a later date, after the investigation has been concluded." In his February 4, 2018, letter of appeal, Mr. McGaha maintained that "it stands to reason that in no way could [disclosure of his] complete Offender Record . . . hinder an ongoing investigation." Upon receiving notification of Mr. McGaha's January 4, 2018, appeal, HCDC cited, for the first time, KRS 61.878(1)(h), attaching the brief January 3, 2018, e-mail of FBI Special Agent Mike Brown in which Agent Brown generally stated that disclosure of the "recording and reports" would "potentially harm the investigation." Because KRS 197.025(3) is determinative on the facts presented, this office makes no finding as to whether HCDC ultimately justified its denial on the basis of KRS 61.878(1)(h) by demonstrating the harm that would result from disclosure of the records in dispute. See 16-ORD-249.
The Attorney General is precluded from addressing the merits of the instant appeal challenging the denial of Mr. McGaha's December 26, 2017, request by operation of 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.
As noted, Mr. McGaha submitted his request on December 26, 2017, and HCDC issued a written response on January 4, 2018. Mr. McGaha's letter of appeal is dated February 4, 2018, thirty (30) days later (excluding the Martin Luther King Jr. Holiday on January 15, 2018). 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). "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; 14-ORD-010. Because Mr. McGaha is a "person[] confined in a penal facility," and he failed to properly challenge the agency's January 4, 2018, denial of his December 26, 2017, request within 20 days, Mr. McGaha's February 4, 2018, appeal is time-barred; accordingly, this office is precluded from addressing the merits of any related issues per KRS 197.025(3). 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.
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 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.