Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Danny Shelley's appeal of the Pulaski County Detention Center's disposition of an open records request filed on his behalf by his mother, Lillian Shelley's attorney, Mr. Jay McShurley, 1 for copies of "jail records, medical records, and visitor logs" is time barred. KRS 197.025(3) provides:
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 a Circuit Court.
As noted, the Detention Center denied Mr. McShurley's 2 request in an undated letter, prompting Mr. Shelley to initiate this appeal on September 16, 2005. 3 That appeal was returned to Mr. Shelley on September 27, 2005, pursuant to 40 KAR 1:030 Section 1, because it did not contain the requisite written request and denial. Mr. Shelley's second appeal, although dated September 16, did not reach this office until January 4, 2006, some three months after the Detention Center issued its denial. Because Mr. Shelley is a person confined in a penal facility, and because he failed to challenge the Detention Center's denial within twenty days, Mr. Shelley's appeal is untimely, and we are foreclosed from issuing an open records decision by operation of KRS 197.025(3). 4 We find that 02-ORD-54, a copy of which is attached hereto and incorporated by reference, is controlling. See also, 02-ORD-110; 03-ORD-007; 04-ORD-074; 06-ORD-025.
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.
Footnotes
Footnotes
1 The chronology of events giving rise to this appeal is mired in confusion. The record on appeal indicates that Mr. McShurley submitted his request on August 23, 2005. The Detention Center denied this request, through the Pulaski County Attorney, in an undated letter. Neither of these records accompanied Mr. Shelley's original open records appeal which was dated September 16, 2004, but received by this office on September 22, 2005. By letter dated September 27, 2005, (copy enclosed), this office notified Mr. Shelley that the Attorney General could not consider his appeal because the appeal "did not conform to the requirements of . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial if the agency provided a denial." 40 KAR 1:030 Section 1. On January 3, 2006, this office received Mr. Shelley's original letter of appeal, bearing the September 16, 2004, date, along with a handwritten note from Mr. Shelley's mother, dated December 14, 2005, Mr. McShurley's September 2 letter to Mrs. Shelley and attachments consisting of his August 23 request and the County Attorney's undated denial, neither of which, as noted, were included in Mr. Shelley's original appeal. Mr. Shelley's new appeal also contained a November 29, 2005, open records request to the Pulaski County Detention Center. Inasmuch as Mr. Shelley's letter of appeal does not (could not) reference the latter request, or any subsequent events, we do not consider it here.
2 Mr. Shelley candidly acknowledges that Mr. McShurley's request was made on his behalf. Clearly, sufficient objective indicia exist to establish an identity of purpose between Mr. McShurley and Mr. Shelley and to justify this office's decision to impose the requirements for initiating an appeal found at KRS 197.025.
3 We assume that the September, 2004, date that appears on Mr. Shelley's letter of appeal is a typographical error.
4 Mr. Shelley's second appeal was time barred on January 4, 2006, when it was received by this office, though we did not ascertain its status as such until after the appeal had been placed on extension pursuant to KRS 61.880(2)(b). The decision to place the appeal on extension therefore did not operate to Mr. Shelley's disadvantage.