Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the failure of the Kentucky Parole Board to respond to Roger Dale Shelton's December 22, 1997 open records request for certain records related to his recent Parole Board hearing. In his letter of appeal, dated March 4, 1998, Mr. Shelton indicated that he had yet to receive a response from the Parole Board.
After receipt of the letter of appeal, we sent "Notification of Receipt of Open Records Appeal" to the Parole Board and enclosed a copy of Mr. Shelton's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamala Biggs, Office of General Counsel, Department of Corrections, on behalf of the Parole Board, provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs stated that she was unable to ascertain precisely what had occurred regarding this particular request. She further explained:
Following some incidents in the past, a system was put in place for hand delivery of requests received by the Parole Board for records which were in the inmate's file. While it is unclear whether this particular request was simply placed in a mail slot at the file room or delivered to an employee who was off for the holidays, the request was filed without a response. This is a problem which shall be addressed internally.
Along with her response, Ms. Biggs enclosed a copy of a subsequent open records request made by Mr. Shelton on March 9, 1998 which was a repeat of the request under appeal. Also enclosed was the Department's March 12, 1998 response to the request.
The question submitted in this appeal is whether the Parole Board violated the Open Records Act in its handling of Mr. Shelton's December 22, 1997 request. For the reasons that follow, we find that the Board violated KRS 61.880(1) in failing to respond to the request.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute 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 record 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.
The Parole Board violated KRS 61.880(1) of the Open Records Act by failing to respond to Mr. Shelton's in writing and within three business days. This violation is mitigated, in part, by the Department's timely response to Mr. Shelton's March 9, 1998 repeat request.
In that response, the Department released some of the documents requested by Mr. Shelton; denied access to certain other records, the release of which were prohibited by either federal or state statutes under KRS 61.878(1)(k) and (1), respectfully; affirmatively advised Mr. Shelton if specifically described records did not exist in his file; and responded to record requests which were vague, citing KRS 61.872(2) and informing him that he must describe the record by either the document title or by topic in order for the Department to identify the specific document being requested.
No appeal is before this office as to the March 9, 1998 repeat request and the Department's response thereto. Thus, we express no opinion on that matter. We do reference the repeat request and the agency's timely response to the request as a factor in mitigation of the Department's failure to respond to Mr. Shelton's December 22, 1997 request and as evidence that it has taken steps to ensure that timely responses are made to open record requests submitted to the Parole Board.
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. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.