Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Summary : Kentucky State Penitentiary violated KRS 197.025(7) by failing to make a timely disposition of an open records request, but did not violate the Open Records Act by refusing to fulfill a second request for the same records.
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary (KSP) violated the Open Records Act in the disposition of inmate Uriah Pasha's June 24, 1019, request for "[a] copy of the data that KSP officer(s) used to determine the items that appear on the Seized Property Receipt date 6/20/19 under inmate name: Pasha, Uriah #092028, was unauthorized." For the reasons stated below, we find that KSP committed a procedural violation of KRS 197.025(7), but did not commit a substantive violation of the Act.
KSP's open records office received Mr. Pasha's request on June 25, 2019. On July 2, 2019, KSP replied that the facility's response time of five business days under KRS 197.025(7) "may be extended ? if the records are in use, storage or not otherwise available." KSP further stated: "Due to the large amount of documents you have requested to purchase [ sic ] and the availability of staff to research and assist in obtaining the records requested, additional time is needed in order to provide a reply." For those reasons, KSP would "issue a final response ? on or before July 10, 2019." This office received Mr. Pasha's appeal on July 5, 2019.
On July 10, 2019, KSP denied Mr. Pasha's request, stating: "Per CO Lukens, Property Room Officer, the 'data' that is used to determine if an item is to be seized or not is the previous property sheet as well as receipts for the items. For this request, you were previously provided a copy of the documents used for the 6/20/19 seized items consisting of the property room list and canteen receipts." Since Mr. Pasha had received the records in response to a previous request, KSP declined to fulfill his request for "duplicate copies." On July 12, 2019, KSP submitted a response to Mr. Pasha's appeal, which reiterated the facility's responses to Mr. Pasha but did not significantly elaborate on them.
KRS 197.025(7) , which governs open records requests to correctional facilities, 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.
In its initial response, KSP alleged that the records were not "available" because they represented a "large amount of documents." In its final response, however, KSP indicated that the records merely consisted of Mr. Pasha's previous property sheet and a series of canteen receipts. Similarly, whereas KSP's initial response stated that "availability of staff to research and assist in obtaining the records" was a concern, its final response revealed that only a statement from the Property Room Officer was necessary to dispose of the request. Since KSP has not justified its delay in responding to the request, we find that it committed a procedural violation of KRS 197.025(7) by not making a final disposition within five (5) business days. 1
We find no substantive violation of the Open Records Act, however, as this office has generally upheld the denial of a duplicate request for records. In 95-ORD-47, for example, we stated that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." Consequently, in 04-ORD-018, we found that a prisoner who had inspected his inmate file once was not entitled to view it again unless he could "explain the necessity of reproducing the same records which either already have been provided or have been inspected by him, such as loss or destruction of the records." As Mr. Pasha offered no such explanation, we uphold the denial of the request for records KSP had already provided to him.
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 Although KSP did not cite a specific statute for the proposition that the five-day period "may be extended ? if the records are in use, storage or not otherwise available," its phrasing mirrors the language of KRS 61.872(5). Had KSP expressly relied on KRS 61.872(5), which requires "a detailed explanation of the cause ? for further delay," it would still have failed to justify the additional delay under these facts.