Request By:
Ms. Ellen Cockerham
Offender Records Specialist
Western Kentucky Corrections Complex
P.O. Box 5000
Eddyville, Kentucky 42038
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Amye B. Majors, Assistant Attorney General
Mr. William Runyon, an inmate at the Western Kentucky Corrections Complex (WKCC), has appealed to the Attorney General, pursuant to KRS 61.880, the denial of his open records request issued by Sgt. Barbara Hurley, Grievance Coordinator at WKC. On February 12, 1992, Mr.Runyon requested access to the movement logs of inmate bed and housing assignments from June 1, 1991, through January 31, 1992. In an undated response, Sgt. Hurley advised:
No other information will be given, other than what went before the grievance committee. You may write-out [sic] your appeal and add what you want and I will mail it to the Secretary's office. Information requested above is not avaliable [sic] due to security.
Mr. Runyon's appeal followed.
In his letter to this office, Mr. Runyon objects to Sgt. Hurley's denial, noting that because she is not the official custodian of records at WKCC, she is not authorized to issue a response for the agency pursuant to KRS 61.880(1). He further objects to her failure to cite a specific exception authorizing nondisclosure or a brief explanation of how the exception applies to the records withheld. Nor, he notes, did she send a copy of her response to the Attorney General as required by KRS 61.880(2).
In a conversation with the undersigned on March 19, 1992, you indicated that you were not notified that Mr. Runyon had submitted a request until your received a copy of the appeal filed with this office. It therefore appears that you were pre-empted in the discharge of your duties as offender records specialist by Sgt. Hurley.
Mr. Runyon asks that we review WKCC's actions to determine if said actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that because Sgt. Hurley's response does not constitute final agency action, inasmuch as it was not issued by the official custodian or under her authority, this appeal is not ripe for review by the Attorney General.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays, and legal holidays) 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 three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Sgt. Hurley's response to Mr. Runyon's request was technically deficient insofar as she did not include a statement of the specific exception authorizing nondisclosure of the records or a brief explanation of how the exception applies to the records withheld. Additionally, she did not send a copy of the response to the Attorney General as required by KRS 61.880(2).
In OAG 92-31, we dealt with a similar issue, concluding that a response issued by anyone other than the official custodian, or under his or her authority does not constitute final agency action pursuant to KRS 61.880(1). Such a response must be treated as a nullity. Since no final action has been taken by WKCC, Mr. Runyon's appeal is not ripe for review. He should resubmit his request to his caseworker with directions that it be forwarded to you for review and response within three working days.
At page 3 of OAG 92-31, we observed:
KRS 61.870, et. seq., contemplates the appointment of an official custodian of records to whom all requests are directed for proper disposition. It is imperative that every employee of [the correctional facility] acknowledge the authoritty of the offender records specialist in handling these requests.
We urge WKCC to review its existing open records policy, bearing in mind the importance of both substantive and procedural compliance with the Act.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. William Runyon. Both Mr. Runyon and WKCC may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).