Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Kentucky State Reformatory violated the Kentucky Open Records Act in the disposition of Thomas Mitchell's request for a certified copy 1 of specified correspondence, logs and a certain page from a publication. Upon receiving notification of Mr. Mitchell's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of KSR. In relevant part, Ms. Dennis explains:
Mr. Mitchell alleges that he sent an open records request on December 12, 2006 for which he received a response dated December 28, 2006. The December 28th response explained that there would be a delay in the final response, which Mr. Mitchell alleges he never received. [Mr.] Mitchell also alleges that he re-wrote Ms. Heightchew on February 18, 2007 and has received no reply []. . . .
Complainant's allegations that he has received no response to his December 12, 2006 open records request (received December 20, 2006) are without basis. Following the December 28, 2006 interim response, Ms. Heightchew responded to Mr. Mitchell's initial request (dated December 12, 2006) by letter dated January 17, 2007. [2] Complainant waived any claims related to this response by failing to challenge the denial to the Attorney General within twenty (20) days, pursuant to KRS 197.025(3). KRS 197.025(3) states that 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).
With respect to Mr. Mitchell's allegations that he again sent the above-referenced open records request to the KSR on February 18, 2007, Ms. Heightchew attests under oath that she has not received this alleged request. Mr. Mitchell's allegations that he sent the request are not supported by any proof. Even if Respondent had received the request - which she has not - the request is identical to Mr. Mitchell's prior request for which a response was issued on January 17, 2007 and the Attorney General has held that an agency is not required to satisfy identical requests for documents. 95-ORD-47.
Based upon the foregoing, Ms. Dennis asserts there is "no basis upon which to find that [KSR] violated the" Open Records Act, since Mr. Mitchell's "alleged February 18, 2007 request was never received. In addition, all issues regarding [Mr. Mitchell's] December 20, 2006 request that was answered by letter dated January 17, 2007 have been waived. " 3 On both counts, Ms. Dennis is correct.
In our view, 05-ORD-013 is controlling on the factual issue concerning receipt of Mr. Mitchell's alleged request dated February 18, 2007; a copy of that decision is attached hereto and incorporated by reference. See 05-ORD-264; 03-ORD-061. As in the cited decisions, the record on appeal contains insufficient evidence concerning the actual delivery and receipt of this request for the Attorney General to conclusively resolve the related factual discrepancy although the weight of the evidence supports the position of KSR. Absent objective proof, this office finds that no basis exists upon which to base a determination that KSR committed a procedural violation of the Act in this regard. In short, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that mandate. Further elaboration is unnecessary given our resolution of the issue relative to KRS 197.025(3).
As previously noted, KSR responded to Mr. Mitchell's initial request on January 17, 2007; however, Mr. Mitchell did not file this appeal until March 7, 2007. 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). Because Mr. Mitchell is "a person confined in a penal facility," and failed to challenge the denial by KSR within twenty days in accordance with KRS 197.025(3), his appeal is time-barred. Accordingly, this office is unable to render a decision on the merits in this matter. On this issue, 03-ORD-007, a copy of which is attached hereto and incorporated by reference, is controlling. See also 05-ORD-041; 02-ORD-254; 02-ORD-110.
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.
Thomas Mitchell, # 100889
Emily DennisOffice of Legal ServicesJustice and Public Safety Cabinet125 Holmes StreetFrankfort, KY 40601
Lisa HeightchewOffender Information SupervisorKentucky State Reformatory3001 West Highway 146LaGrange, KY 40032
Footnotes
Footnotes
1 To clarify, KSR was not required to provide Mr. Thomas with a certified copy of the records at issue, even assuming that such records existed and the KSR had custody. A public agency is not statutorily obligated to "certif[y] . . . the appropriate records . . . in such manner that the same may be introduced as evidence in a court of law . . . ." Such a requirement does not exist in the Open Records Act. 03-ORD-207, p. 3. In addition, Mr. Thomas is not entitled to receive a copy of any record which does not contain a specific reference to him, such as the logs and publication requested, per KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). On this issue, 04-ORD-276 and 04-ORD-205 are controlling.
2 More specifically, Ms. Heightchew advised Mr. Mitchell that any correspondence which is responsive to his request will be included in his institutional file, which is maintained by the "Open Records Coordinator at KSP," thereby substantially complying with KRS 61.872(4). Citing 99-ORD-98, Ms. Heightchew further advised Mr. Mitchell "there is no public record maintained by the Department of Corrections" which is responsive to his request for "any KSR records/logs revealing all names and signatures of DOC/KSR employees who entered the KSR facility on Thanksgiving Day 2002." Citing prior decisions of this office in support of her position, Ms. Heightchew correctly observed that a public agency "cannot afford a requester access to a record that it does not have or which does not exist." To the contrary, a public agency "discharges its duty under the Open Records Act by affirmatively so stating." Despite having conducted a thorough search, the Education Director was apparently unable to locate the requested publication; however, Ms. Heightchew correctly advised Mr. Mitchell that KSR does its "best to maintain copies of this publication," but KSR "is not required to do so." Even assuming the appeal was not time-barred, KSR did not violate the Open Records Act in responding to Mr. Mitchell's request aside from the admitted but impermissible delay.
3 In addressing duplicative requests, the Attorney General has consistently recognized that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 99-ORD-107. Noticeably absent from the record is a copy of the second request.
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