Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : Inmate requester initiated his appeal prior to expiration of the five days, excluding weekends and holidays, in which Barren County Detention Center was required to issue a written response per KRS 197.025(7) to his July 16, 2019, request. Accordingly, his July 22, 2019, appeal was premature. Insofar as BCDC ultimately provided the requester with a copy of all existing documents responsive to his request, any related issues are moot per 40 KAR 1:030, Section 6.
Open Records Decision
The question presented in this appeal is whether the Barren County Detention Center ("BCDC") violated the Open Records Act in the disposition of Robert McKinney's July 16, 2019, request for: 1) "all documents detailing the 2,791.00 charge for housing and booking fees to include all documents displaying charges and final disposition of charges lodged for prior to 2011"; and 2) "Collection Agency Notification to the jail of [b]ankruptcy discharges of debt in 2011." Mr. McKinney initiated his appeal by letter dated July 22, 2019, four days after his request, excluding weekends and holidays. He challenged the agency's failure to issue a written response within three working days per KRS 61.880(1) and stated that he received via inmate mail "a printout of the charges that was already available on the inmate Communication System," but did not receive the records that he requested. Based upon the following, this office finds that Mr. McKinney's appeal was premature. However, the issues presented are now moot per 40 KAR 1:030, Section 6 insofar as BCDC ultimately provided him with a copy of all existing responsive documents that it possessed.
As a public agency, BCDC must comply with procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that "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." However, "KRS 197.025(7) extends the deadline for response to a request submitted to the Department of Corrections from three days, as provided for in KRS 61.880(1), to five days. It has been construed to apply to correctional facilities and jails. "1 12-ORD-037, p. 3; 15-ORD-152; 16-ORD-054; 18-ORD-211. Accordingly, BCDC was not statutorily required to issue a written response to Mr. McKinney until the fifth working day following receipt of his July 16, 2019, request. Even assuming that BCDC received the request on July 16, 2019, its response was not due until July 23, 2019. In light of the foregoing, Mr. McKinney's July 22, 2019, appeal was premature.
KRS 61.880(2)(a) establishes the requirements and timeline for initiating 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."
Mr. McKinney 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 this provision narrows the window of opportunity in which an inmate may appeal the disposition of his request by DOC, a correctional facility under its jurisdiction, or a local jail/ detention center, "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 Mr. McKinney failed to allow BCDC that opportunity, his appeal was premature. See 04-ORD-022; 11-ORD-073; 13-ORD-011; 15-ORD-007.
Nevertheless, upon receiving notification of Mr. McKinney's appeal, Captain Juanita Adwell responded on behalf of BCDC. In her August 1, 2019, letter, Captain Adwell stated that she had provided him with "a copy of the contracts for all the fees that he owes, which includes the $ 2791.00 for his booking and housing fees." However, she further indicated that BCDC did not possess a copy of his bankruptcy discharge and that she had explained as much to him. She also enclosed a copy of Mr. McKinney's July 12, 2019, "Inmate Grievance Form [not a request under KRS 61.880(1)]," which included her July 16, 2019, response confirming that she and Deputy Michelle Honeycutt sent him a copy of the responsive contracts, including balances, and explained that BCDC does not have any records on file pertaining to his bankruptcy.2 Because BCDC ultimately provided Mr. McKinney with a copy of all existing responsive documents in the possession of the agency, this office has no basis upon which to find it committed a substantive violation of the Open Records Act, even assuming that his appeal was not premature. See 40 KAR 1:030, Section 6 ("If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter."). For the foregoing reasons, the Attorney General finds that Mr. McKinney's July 22, 2019, appeal was premature, but any issues presented were ultimately rendered moot when BCDC provided Mr. McKinney with a copy of the records in dispute.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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 See Bowling v. Lexington-Fayette Urban Cty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005) ("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-037; 15-ORD-059; 17-ORD-223. BCDC is not required to produce a nonexistent record nor is the agency expected to "prove a negative" in order to refute a claim that a certain record exists. See Bowling, 172 S.W.3d at 341. Compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); 12-ORD-195.