Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Summary: Because inmate requester failed to provide this office with a copy of Kentucky State Reformatory's timely written response to his request in accordance with KRS 61.880(2)(a), the Attorney General is precluded from reviewing his appeal per 40 KAR 1:030, Section 1.
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory ("KSR") violated the Open Records Act in denying Ronald Curtis's January 23, 2018, request for a "copy of explanation of all co-pays including what medication it was taken for and the amount - from January 1, 2010 to January 1, 2018." By letter dated February 23, 2018, Mr. Curtis asserted that KSR did not issue a timely written response to his request.
Upon receiving notification of Mr. Curtis's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR, correctly asserting that KRS 197.025(7) affords the Department of Corrections (DOC), and facilities under its jurisdiction, including KSR, five business days in which to issue a written response upon receipt of a request properly submitted under the Act. 1 Ms. Barker advised that KSR actually received Mr. Curtis's January 23, 2018, request on January 26, 2018, as indicated on the copy of the request form attached to her March 8, 2018, appeal response. To substantiate her position that KSR mailed a response on that same day, Ms. Barker enclosed a copy of an e-mail that Marlene Powell, Correct Care Solutions, directed to her on March 6, 2018, attached to which Ms. Powell provided a copy of her original response dated January 26, 2018. In that response, Ms. Powell advised Mr. Curtis, "Medical Records does not have access to this information. I have turned over your paperwork to the proper person who handles your questions."
Quoting the language of 40 KAR 1:030, Section 1, Ms. Barker argued that Mr. Curtis failed to perfect his appeal. Because Mr. Curtis failed to submit a copy of the agency's timely June 24, 2015, response in accordance with KRS 61.880(2)(a), Ms. Barker maintained that "according to this statute and its own regulation, 40 KAR 1:030," the Attorney General's Office is precluded from considering his appeal. KRS 61.880(2)(a) outlines the procedural requirements for submitting 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." Insofar as Mr. Curtis did not provide this office with a copy of the agency's written response, his appeal was incomplete.
Mr. Curtis 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 KRS 197.025(3) narrows the window of opportunity during which an inmate may appeal the disposition of his request by DOC or a correctional facility such as KSR, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 2 11-ORD-073, p. 3; 15-ORD-137.
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 Even assuming that Mr. Curtis had fully complied with KRS 61.880(2)(a), KSR correctly advised Mr. Curtis that KSR Medical Records does not have access to information like that requested. KSR also correctly noted that a public agency cannot produce a non-existent record for inspection or copying. See 14-ORD-245. Finally, KSR forwarded Mr. Curtis's request to the appropriate individual.