23-ORD-036
February 16, 2023
In re: Lawrence Trageser/Kentucky Department of Corrections
Summary: This Office cannot find that the Kentucky Department of
Corrections (“the Department”) violated the Open Records Act (“the
Act”) because this Office is unable to resolve the factual dispute of
whether a requester received a public agency’s response once the public
agency provides proof that the response was mailed.
Open Records Decision
On January 9, 2023, Lawrence Trageser (“Appellant”) submitted a request for
records to the Department for “the personnel file” and visitor’s log for a specific
inmate.1 On January 9, 2023, the Department confirmed receipt of the request. On
January 20, 2023, the Appellant initiated this appeal and claimed he received no
further response from the Department.
On appeal, the Department claims it issued a timely response to the
Appellant’s request and the appeal is unperfected because he did not provide the
Office a copy of that response. As proof, the Department submits a copy of a letter
dated January 12, 2023, where it informed the Appellant that it required “additional
time” to gather responsive records because of “the extensive number of records being
requested” and the need to review and redact them. The Department also stated its
open records coordinator would be out of the Office until January 20, 2023. Thus, the
1
Although the Appellant repeatedly requested “the personnel file” of this individual, it is not clear
whether this inmate was a former employee of the Department. Generally, “personnel files” relate to
employment records. Presumably, the Appellant sought the individual’s personal inmate file.Department informed the Appellant that it would issue a final response on or before
February 17, 2023. As proof that the Appellant received its January 12, 2023 letter,
the Department provides a certified mail receipt that appears to have been signed by
the Appellant on January 20, 2023.
When an agency receives a request under the Act, it is required to respond to
the request and provide any nonexempt responsive records within five business days.
KRS 61.880(1). However, an agency may extend this time if the records are “in active
use, in storage or not otherwise available,” so long as the agency gives the requester
“a detailed explanation of the cause . . . for further delay and the place, time, and
earliest date on which the public record[s] will be available for inspection.”
KRS 61.872(5).
Here, the Appellant claims he did not receive any response from the
Department other than an email confirming it had received his request on January
9, 2023. Although the certified mail receipt does not show when the Department
mailed its response, the Department’s response is dated January 12, 2023, which
would have been timely if it was mailed on that day. This Office is unable to resolve
factual disputes such as these. See, e.g., 22-ORD-159; 21-ORD-233. Accordingly, this
Office cannot find that the Department failed to issue a timely response to the
Appellant’s request.2
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
2
Because the Appellant’s submission of the appeal and delivery of the Department’s response
appear to have crossed each other on the same day, the Appellant did not have a copy of the response
to attach to his appeal. Accordingly, he did not directly challenge the Department’s invocation of
KRS 61.872(5) to delay his access to records. However, the Office notes that an agency cannot rely on
employee absences to delay access to records under KRS 61.872(5), because that statute only permits
delay if the requested records themselves are “not otherwise available.” See, e.g., 23-ORD-013.Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#028
Distributed to:
Lawrence Trageser
Edward Baylous
Amy V. Barker
Lydia Kendrick
Ann Smith