19-ORD-029
February 18, 2019
In re: Uriah Pasha/Kentucky State Police
Summary: The Attorney General is precluded from reviewing the appeal, per 40 KAR 1:030, Section 1 because inmate failed to provide this office with a copy of the Kentucky State Police timely written response to his open records request, in accordance with KRS 61.880(2)(a).
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Police (“KSP”) violated the Open Records Act in failing to issue a timely written response to a request for records submitted by Uriah Pasha (“Appellant”). For the reasons stated below, we find that the Attorney General is precluded from considering this appeal.
On January 4, 2019, Appellant submitted a request for records to the Frankfort KSP post. Appellant sought “[a] copy of the 1/2/2019 letter from Uriah Pasha #092028…to the Commonwealth of Kentucky; a copy of the 1/2/2019 letter from Uriah Pasha #092028, to the Office of the Major, Kentucky State Police; the response to said letters.” KSP received the request on Thursday, January 10, 2019, and issued a written response, within three business days, on Tuesday, January 15, 2019. KSP’s response complied with the time requirements of KRS 61.880(1).1
Appellant submitted an appeal regarding his request to this office on January 15. In that appeal, Appellant argued that KSP had failed to respond within five (5) working days.2 Staff Attorney Cody Weber responded on behalf of KSP. Mr. Weber argued that KSP responded to the appeal on January 15, even though Appellant failed to attach a copy of that response to his appeal. Mr. Weber attached date stamped copies of Appellant’s request and the response to verify the timeliness of KSP’s disposition.
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 public agency response to his appeal to allow this office to initiate a review. KRS 61.880(2)(a) establishes the requirements for an Open Records Appeal, which 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.”
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 13 prohibits this office from considering an appeal that fails to conform to the content requirements stated in KRS 61.880(2)(a).
In addition, Appellant is an inmate confined in a penal facility. As such, KRS 197.025(3) requires that he “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. Because Appellant failed to complete the record by attaching a copy of KSP’s timely response to his appeal, this Office is precluded from considering the issues presented.
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.
Andy Beshear
Attorney General
J. Marcus Jones
Assistant Attorney General
#018
Distributed to:
Uriah Pasha, #092028
Stephanie Dawson
Cody Weber, Esq.
[1] KRS 61.880(1) states in relevant part: “Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.”
[2] Appellant incorrectly references the time requirement stated in KRS 197.025(7). The statute establishes time in which the Department of Corrections must respond to a request for any record. The department is allowed to respond “within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays[.]” KRS 197.025(7) is only applicable to agencies within the department. The Kentucky State Police and other agencies outside of the department must comply with the time requirements stated in KRS 61.880(1).
[3] 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.”