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 submitted by Fred Jones on January 31, 2005, for copies of his medical records. On February 2, 2005, Bobby Jones, LAC Records Custodian, advised Mr. Jones that LAC does "not make blanket copies," you "have to make specific requests." At that point, Mr. Jones' request was "forwarded to Medicaid," presumably by Mr. Jones, where it was received on March 14, 2005. By letter dated March 22, 2005, Mr. Jones initiated this appeal. Pursuant to KRS 197.025(3):
KRS 61.880 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any 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 noted, LAC denied Mr. Jones' request on February 2, 2005. However, Mr. Jones, an inmate at LAC, did not initiate this appeal challenging the denial of his request until March 22, 2005. By its express language, KRS 197.025(3) applies to "any denial" of a request submitted by an inmate pursuant to the Open Records Act.
In determining legislative intent, this office must refer to the literal language of the state as enacted rather than surmising what may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.2d 831, 835 (2000). Because Mr. Jones is a "person confined in a penal facility," and he failed to challenge the denial of his request by the LAC within twenty days as mandated by KRS 197.025(3), his appeal is time-barred. Accordingly, the Attorney General is precluded from rendering a decision on the merits of Mr. Jones' appeal. On this issue, 03-ORD-007, 02-ORD-110, and 02-ORD-54, copies of which are attached hereto and incorporated by reference, are controlling.
Upon receiving notification of Mr. Jones' appeal, Sherril Gautreaux, Assistant General Counsel, Operations, Corrections Corporation of America, responded on behalf of LAC. Because Ms. Gautreaux has instructed LAC to "follow Kentucky Department of Corrections policy and procedure" by allowing Mr. Jones "to send a copy of his medical record to his sister," any issues relative to those records are now moot. Accordingly, this office would be precluded from issuing a decision on the merits even if Mr. Jones had filed his appeal in a timely manner.
40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has long held that if access to public records for which inspection or copying has been sought is initially denied but subsequently granted, "the propriety of the initial denial becomes moot." 04-ORD-046, p. 5, citing OAG 91-140. Absent objective evidence to the contrary, this office assumes that Mr. Jones has received copies of the requested records. That being the case, any issues relative to those records are now moot and this office must also decline to issue a decision on the merits of his appeal for this reason.
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.
Fred Jones, # 147111Lee Adjustment CenterP.O. Box 900Beattyville, KY 41311
Sherril GautreauxAssistant General Counsel, OperationsCorrections Corporation of America10 Burton Hills BoulevardNashville, TN 37215
Emily DennisStaff AttorneyJustice & Public Safety CabinetOffice of Legal Services2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400