24-ORD-230
October 25, 2024
In re: Kareem Jenkins/Office of the Governor
Summary: The Office of the Governor (“the Agency”) committed a
technical violation of Open Records Act (“the Act”) when it did not
respond to a request within five days as required by the Act. However,
the Agency did provide the Appellant with all records responsive to his
request upon receiving notice of the Appellant’s appeal.
Open Records Decision
On August 28, 2024, inmate Kareem Jenkins (“Appellant”) submitted a request
seeking records related to “any action” taken on a grievance he previously had sent
to the Agency. On October 2, 2024, having received no response from the Agency, the
Appellant initiated this appeal.
Under the Act, a public agency “shall determine within five (5) [business]
days . . . 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 five (5) day period,
of its decision.” KRS 61.880(1).
On appeal, the Agency acknowledges it received the Appellant’s August 28,
2024, request but its mail room “forwarded the request to the Office of Constituent
Services.” The Agency further acknowledges the letter “invoke[d] the [Act],” but
“[n]either the employees in the mail room nor the employees in the Office of
Constituent Services recognized the letter as making a request for public records.”
Under KRS 61.872(4), if “the person to whom the application is directed does
not have custody or control of the public record requested, that person shall notify the
applicant and shall furnish the name and location of the official custodian of the
agency's public records.” Thus, although the Agency’s mail room and constituent
services employees are not the official custodian of the Agency’s records, they were
required to either notify the Appellant of the records custodian’s name and locationor forward the Appellant’s request to the records custodian. See, e.g., 22-ORD-202;
22-ORD-041; 19-ORD-132; 12-ORD-053.
Upon receiving notice of the Appellant’s appeal, the Agency provided the
Appellant with all records responsive to his request. However, because the Agency
admitted it received the Appellant’s request but did not respond within five business
days as mandated by the plain language of the Act, the Office must conclude that the
Agency committed a technical violation of the Act by causing “delay past the five (5)
day period described in” KRS 61.880(1). KRS 61.880(4). This is consistent with
previously issued opinions. See, e.g. 24-ORD-163 n.1 (finding an appeal of the
Agency’s failure to respond was not moot when the Agency produced the requested
records after receiving the notice of the appeal); 23-ORD-274 n.1 (finding an appeal
was not rendered moot by the Agency’s production of responsive records after the
appeal was initiated because the Appellant alleged the agency subverted the Act by
failing to respond within five business days); 23-ORD-007 (finding the Agency
violated the Act when it failed to respond to the Appellant’s request within five
business days although the Agency stated it planned to provide responsive records).
A party aggrieved by this decision may appeal it by initiating an 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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#400
Distributed to:
Kareem Jenkins #303046
Travis Mayo
Taylor Payne
Laura Tipton