Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Summary : Inmate's appeal of Eastern Kentucky Correctional Complex's denial of his open records was not mailed within twenty days of the denial and is thus time-barred pursuant to KRS 197.025(3). Office of the Attorney General cannot consider the late appeal.
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in its disposition of inmate Matthew Denholm's request for a copy of his inmate account history and verification of that record. For the reasons stated below, we find that this office is precluded from considering the appeal.
By request dated July 31, 2019, inmate Matthew Denholm ("Appellant") submitted an open records request for "6-month inmate account history and verification." The request was stamped as received by EKCC on July 31, 2019, and a timely response was sent on August 2, 2019. The response stated that the request was "Granted: 6 month statement attached. This is the 1st request for your 6-month statement received in this office." Appellant mailed an appeal challenging that response to the Attorney General, claiming that he did not receive all the records he requested and that he should not have been charged for the copy of the record he received. The institutional mailroom postmark on the mailing envelope shows that Appellant mailed his appeal on August 26, 2019.
KRS 197.025(3) requires inmates to appeal the denial of their open records requests within 20 days. 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.
This office interprets KRS 197.025(3) to require that an appeal "have been mailed or sent no later than" the due date. See 17-ORD-175 (finding an appeal untimely because it was not mailed within twenty days of the denial). EKCC provided Appellant with a response to his open records request on August 2, 2019. In order to be a timely appeal, the appropriate documents were due to be "mailed or sent" on or before August 22, 2019. The institutional postmark shows that Appellant placed his appeal in the mail on August 26, 2019, four days after the 20-day limit allowed by KRS 197.025(3). The appeal is therefore untimely.
This office is precluded from rendering a decision on the issues raised in this appeal. A rule of strict compliance applies to tardy appeals.
Johnson v. Smith , 885 S.W.2d 944 (Ky. 1994);
City of Devondale v. Stallings , 795 S.W.2d 954 (Ky. 1990); 15-ORD-225. "Such appeals are subject to automatic dismissal." 12-ORD-121. By its mandatory and express language, KRS 197.025(3) applies to any denial of an open records request submitted by all persons confined in a penal facility. Because Appellant is a "person[ ] confined in a penal facility," and because he failed to properly challenge the denial of his request within 20 days, this appeal is untimely and this office is precluded from addressing the merits of his appeal by operation of KRS 197.025(3). 10-ORD-031; 17-ORD-134; 17-ORD-250. To hold otherwise would circumvent the intent of the General Assembly as expressed in KRS 197.025(3). See 02-ORD-54; 07-ORD-058; 08-ORD-209; 14-ORD-001; 15-ORD-137; 17-ORD-218.
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.