23-ORD-037
February 16, 2023
In re: Eric Hermansen/Kentucky State Penitentiary
Summary: To invoke the Attorney General’s statutory authority to
review an agency’s response to a request submitted under the Open
Records Act (“the Act”), the requester must provide a copy of his or her
original request and the agency’s response thereto.
Open Records Decision
To invoke this Office’s jurisdiction to review a complaint that an agency has
violated the Act, a person must provide the Office with a copy of the request to inspect
public records he submitted to a public agency. KRS 61.880(2)(a). He must also
provide a copy of the agency’s response denying the request, if such a denial was
issued, or state that the agency failed to respond to the request. Id.
On January 17, 2023, Inmate Eric Hermansen (“the Appellant”) attempted to
initiate an appeal to this Office and claimed the Kentucky State Penitentiary (“the
Penitentiary”) had violated the Act when it cited KRS 197.025(1) and (2) to withhold
his mail. He provided a request he submitted to the Penitentiary on January 9, 2023,
in which he sought to inspect a copy of an “appeal” he submitted to the warden
regarding the rejection of his mail. He also provided a letter from the Penitentiary
dated January 11, 2023, in which it stated “[t]his is in reference to your mail rejection
appeal for the mail sent by” another inmate. The Penitentiary further stated his
“appeal is denied” under KRS 197.025(1) and (2).
Because it appeared the Appellant provided a copy of a request to inspect
records and the Penitentiary’s response, the Office processed the appeal and sent
notice to the Penitentiary. In response to that notice, the Penitentiary explains the
Appellant provided a copy of its response to his “mail rejection appeal,” not its
response to his open records request. The Penitentiary actually granted theAppellant’s request, and among the responsive records it provided was its January
11 decision denying his “mail rejection appeal” under KRS 197.025(1) and (2).
Accordingly, the Appellant did not comply with KRS 61.880(2)(a) because he did not
provide all necessary documents and his appeal is dismissed.1
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 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#032
Distributed to:
Eric Lloyd Hermansen #126673
Amy V. Barker
Lydia C. Kendrick
Ann Smith
1
The Appellant confirms on appeal that he seeks this Office’s review of the Penitentiary’s denial of
his grievance relating to mail being withheld from him. But KRS 61.880(2)(a) only authorizes this
Office to determine whether an agency’s disposition of a request to inspect records complied with the
Act. The Office cannot express opinions on ancillary questions of law in the context of an open records
appeal. See, e.g., 22-ORD-274 n.4; 22-ORD-137 n.1. However, the Office notes that a correctional
facility “shall not be required to comply with a request for any record from any inmate confined in a
jail or any facility or any individual on active supervision under the jurisdiction of the department,
unless the request is for a record which contains a specific reference to that individual.”
KRS 197.025(2). Mail addressed to an inmate is not a “request for” a public record.