Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Lee Adjustment Center violated the Kentucky Open Records Act in denying the request of Bryan Lafayette, an inmate at LAC, dated January 21, 2005, for copies of specified investigative records. Upon receipt of Mr. Lafayette's request, Bobby Muse, LAC Records Custodian, forwarded it to CCA-LAC Investigator Archie Moore. In a written response dated January 31, 2005, Mr. Muse advised Mr. Lafayette that his request was denied "because this is not an Open Records issue" without further elaboration.
By letter dated February 24, 2005, Mr. Lafayette attempted to file an appeal from the denial of his request. However, his appeal did not include the requisite documentation. In a letter dated March 1, 2005, this office advised Mr. Lafayette as to the proper procedure for filing an appeal codified at KRS 61.880(2)(a). Because Mr. Lafayette has now complied with this mandatory provision, his appeal would normally be ripe for review.
Upon receiving notification of Mr. Lafayette's appeal, Corrections Corporation of America responded on behalf of LAC. According to CCA, the records to which Mr. Lafayette refers "are part of an internal investigation regarding" the named staff members. Mr. Lafayette filed a grievance complaining that the named officers exhibited unprofessional conduct during a medical transport. Citing KRS 197.025(1), CCA argues that release of such materials regarding employee actions would constitute a threat to the security of the institution insofar as "these documents regularly contain confidential statements from inmates and employees and also identify security mechanisms" utilized by the facility. In support of its position, CCA relies upon 03-ORD-190, 96-ORD-209, and 96-ORD-179. 1 Alternatively, CCA denies Mr. Lafayette's request on the basis of KRS 197.025(2) because the records do not contain a specific reference to him. Acknowledging that LAC's response was procedurally deficient in that LAC failed to cite the specific exception being invoked and explain how the exception applies to the records withheld, CCA maintains there is no basis upon which to conclude that LAC violated the Act on the facts presented. While this may be true, the Attorney General is precluded from addressing the merits of Mr. Lafayette's appeal.
By letter dated March 16, 2005, Emily Dennis, staff attorney, responded to Mr. Lafayette's appeal on behalf of the Department of Corrections. At the outset, Ms. Dennis observes that Mr. Lafayette "is not a Kentucky inmate" as reflected by his institutional number. 2 Confirming that his appeal is time-barred pursuant to KRS 197.025(3), Ms. Dennis also suggests that "the contract between CCA and the state of Vermont may have some bearing on the issue of whether Kentucky law or Vermont law applies" on the facts presented. Because neither Mr. Lafayette nor CCA has raised this issue, and the record does not contain sufficient evidence upon which to base a determination, further elaboration is unnecessary given our resolution of the primary argument raised by CCA.
KRS 197.025(3) provides:
KRS 61.880 notwithstanding, all persons confined in a penal facility shall challenge the denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in circuit court. (Emphasis added).
As previously noted, LAC denied Mr. Lafayette's request on January 31, 2005. However, Mr. Lafayette did not make his initial attempt to file this appeal until February 24, 2005, and did not perfect his appeal until March 7, 2005. By its express terms, KRS 197.025(3) applies to "any denial" of a request submitted by an inmate under the Open Records Act. Because Mr. Lafayette is "a person confined in a penal facility," and failed to challenge LAC's denial within twenty days as mandated by KRS 197.025(3), his appeal is untimely. Accordingly, the Attorney General is unable to render a decision on this matter. On this issue, 03-ORD-007 and 02-ORD-54, copies of which are attached hereto and incorporated by reference, are controlling.
A party aggrieved by this decision may appeal it by initiating an 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.
Distributed to:
Bryan Lafayette, #281298 (D-3)CCA-LACP.O. Box 900Beattyville, KY 41311-0900
Bobby MooreRecords CustodianLee Adjustment CenterP.O. Box 900 Beattyville, KY 41311-0900
Sherril GautreauxAssistant General Counsel, OperationsCorrections Corporation of America10 Burton Hills BoulevardNashville, TN 37215
Emily DennisDepartment of Corrections2439 Lawrenceburg RoadP.O. Box 2400 Frankfort, KY 40602-2400
Footnotes
Footnotes
1 With respect to the applicability of KRS 197.025(1), the reasoning of 04-ORD-017, a copy of which is attached hereto and incorporated by reference, is determinative.
2 In support of this assertion, Ms. Dennis advises us that the Contract Management Branch of the DOC informed her that an institutional number beginning with a 2 or a 3 identifies an inmate from Vermont rather than Kentucky.