Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
Uriah M. Pasha ("Appellant") initiated this appeal on August 15, 2018, challenging the alleged failure of Northpoint Training Center ("NTC") to issue a written response within five days, excluding weekends and holidays, of receiving his open records request. For the reasons stated below, we find that the Attorney General is precluded from considering this appeal.
On August 8, 2018, Appellant requested a copy of the NTC grievance log since April 21, 2018, and a copy of the extraordinary occurrence report regarding an incident that occurred on August 5, 2018. Upon receiving notification of Appellant's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of NTC. Ms. Barker advised that NTC Offender Information Services received Appellant's request on August 9, 2018. She correctly noted that NTC had five days, excluding weekends and holidays, in which to issue a written response under KRS 197.025(7). NTC responded on August 14, 2018, the third business day after it received the request. 1 Appellant initiated his appeal on August 15, 2018, or the fourth business day after NTC received his request and a day after NTC responded to his request. Appellant did not provide this office with a copy of the agency's response.
We find that the appeal is unperfected and this Office is precluded from issuing a decision. KRS 61.880(2)(a) establishes the requirements and timeline for 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.
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."
As Appellant is an inmate confined in a penal facility, KRS 197.025(3) 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 the Department of Corrections or a correctional facility under its jurisdiction, "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 NTC response. Therefore, this office is precluded from considering the issues presented in this 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
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.