Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Little Sandy Correctional Complex ("LSCC") violated the Open Records Act in its disposition of an open records request submitted by inmate Uriah Pasha ("Appellant"). For the reasons stated below, we find that the Attorney General is precluded from considering this appeal.
On Saturday, February 3, 2018, Appellant submitted a Request to Inspect Public Records form with LSCC. Appellant submitted the form with the following request to inspect a document:
A copy of the Order/Decision to place the "Refusal to Eat Individual Log(s)" on Uriah Pasha 092028 from 01/26/2018 until 02/03/2018. Not the logs themselves but the order to start them and to monitor Pasha every 30 minutes.
Appellant submitted an appeal regarding this request to this Office on February 12, 2018. In that appeal, he claimed that LSCC had failed to respond within five (5) working days and did not conduct "a proper search for the record."
Ms. Amy Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of LSCC on February 20, 2018. Ms. Barker argued that the LSCC response had been sent to Appellant on February 12, 2018, and the response was timely. Ms. Barker provided an email, dated February 19, 2018, from Elicia B. Harper, Offender Records Custodian for LSCC. The email message stated that Ms. Harper "responded on 2/12" and the response "is in scanned documents in KOMS." Ms. Barker also argued that the appeal was premature and unperfected because Appellant had failed to attach the timely response. No other documents have been submitted to this office for this appeal.
We find that the appeal is unperfected, and this Office is precluded from issuing a decision. Appellant is required to attach a copy of the LSCC response to this appeal to allow this office to initiate a review. KRS 61.880(2)(a) establishes the requirements for an Open Records Appeal. The statute states:
"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."
We interpret this provision to mean that 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 the public agency. See 13-ORD-011; 17-ORD-118. 40 KAR 1:030, Section 1 1 prohibits this office from considering an appeal that fails to conform to the content requirements stated in KRS 61.880(2)(a). Because Appellant is an inmate confined in a penal facility, KRS 197.025(3) also 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 open records request, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 11-ORD-073, p.3. Appellant failed to complete the record by attaching the LSCC response. Therefore, this Office is precluded from considering the issues presented in this appeal.
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 40 KAR 1:030 Section 1 states: "Form. The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2), requiring submission of a written complaint to the public agency and the public agency's written response, if the agency provided a response, and KRS 61.880(2), requiring submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial."