Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Summary : Because inmate requester attempted to initiate his appeal prior to expiration of the time frame in which the Fayette County Detention Center ("FCDC") was required to issue a written response under KRS 197.025(7), and thus failed to provide this office with a copy of the response per KRS 61.880(2)(a), this office is precluded from addressing the merits of his appeal per 40 KAR 1:030, Section 1.
Open Records Decision Wendell Dixon initiated this appeal on September 2, 2019, challenging the alleged failure of FCDC to issue a written response within five days, excluding weekends and holidays, of receiving his open records request. On August 22, 2019, he requested a copy of the dates and time when the shackling/restraints were put on him and taken off of him on March 3, 2015 through March 4, 2015. Upon receiving notification of Mr. Dixon's appeal from this office, J. Todd Henning, Attorney Senior for Lexington-Fayette Urban County Government, responded on behalf of FCDC. FCDC advised it received Appellant's request on September 9, 2019. FCDC correctly noted that it had five days, excluding weekends and holidays, in which to issue a written response under KRS 197.025(7).
KRS 61.880(2)(a) establishes the requirements and timeline for 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. Under 40 KAR 1:030, Section 1, "[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."
Appellant 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 or a correctional facility under its jurisdiction, "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 do so, this office is precluded from addressing the issue(s) presented in his appeal. See 04-ORD-022; 11-ORD-073; 13-ORD-011.
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.