Opinion
Opinion By: Andy Beshear,Attorney General,James M. Herrick,Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Chris Hawkins' appeal of the Kentucky State Penitentiary's ("KSP") disposition of his February 4, 2019, open records request 1 is time-barred.
KSP received Mr. Hawkins' request on February 6, 2019, and issued a written response on February 13, 2019, pursuant to KRS 197.025(7). The response stated that due to "an overwhelming increase in Open Record requests the last two (2) weeks and the availability of specific staff to research and assist in obtaining the sensitive records requested," the facility "will require additional time to retrieve and review the records you request and will issue a final response to you on or before February 20, 2019."
On February 27, 2019, this office received an unperfected appeal from Mr. Hawkins, to which he attached the facility's February 13 response but failed to attach a copy of his request pursuant to KRS 61.880(2)(a). On March 4, 2019, this office received a second unperfected appeal, in which Mr. Hawkins referred to the facility's February 13 response but failed to include a copy of that response along with his request. 2 In both of his unperfected appeals, he stated that KSP still had not provided him any records, despite having given him a date certain of February 20, 2019. The present appeal, which this office received on March 20, 2019, includes both the request and the February 13 response as required by KRS 61.880(2)(a), but is untimely.
KRS 197.025(3) provides:
KRS 61.880 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.
Mr. Hawkins relies upon the date certain of February 20, 2019, to predicate his appeal upon the constructive denial of his request. Because Mr. Hawkins is a person confined in a penal facility, and because he failed to perfect an appeal from KSP's constructive denial within 20 days from February 20, 2019, Mr. Hawkins' appeal is untimely and we are foreclosed from rendering a decision on the issues raised. We find that 02-ORD-54, a copy of which we attach hereto and incorporate by reference, is controlling. See also 02-ORD-110; 03-ORD-007; 04-ORD-074.
Mr. Hawkins contends that the date this office received one of his earlier, unperfected appeals should govern the issue of timeliness of this appeal. On the contrary, the existence of a prior unperfected appeal does not alter the 20-day deadline for "sending the appropriate documents" under KRS 197.025(3) . 02-ORD-54; 14-ORD-152. We did not receive an appeal from Mr. Hawkins conforming to the requirements of KRS 61.880(2)(a) until March 20, 2019, and therefore did not acquire jurisdiction until that date.
Mr. Hawkins further argues that the doctrine of equitable tolling should enable this appeal to proceed. We disagree. KRS 61.880(2) provides this office no power to apply equitable tolling. The "most fundamental [distinction] between administrative law cases and cases originating in the Court of Justice is the source of the tribunal's authority." Herndon v. Herndon, 139 S.W.3d 822, 825 (Ky. 2004). In administrative cases, "Executive Branch agencies ? may exercise only such authority as may be legislatively conferred." Id. at 826. Therefore, this office may not presume to exercise equitable jurisdiction to extend a statutory deadline.
Lastly, we find no significance in Mr. Hawkins' citation to CR 6.01, a civil rule relating to the computation of time. Open records appeals under KRS 61.880(2) are not court proceedings governed by the Rules of Civil Procedure; nor do we believe CR 6.01 would afford Mr. Hawkins any relief if it did apply. We accordingly find Mr. Hawkins' appeal untimely pursuant to KRS 197.025(3).
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.
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