Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northpoint Training Center violated the Kentucky Open Records Act in the disposition of Lorenzo C. Lee's July 7, 2008, request for a copy of "any and all pictures, and reports made of the cookies Aramark prepared on 31st May 2008, that contained hard plastic, uncooked rice, and trash in them." By letter dated July 14, 2008, Offender Information Specialist Andrea M. Windsor denied Mr. Lee's request on the basis of KRS 197.025(2). On August 15, 2008, Mr. Lee submitted an identical request, citing the Freedom of Information Act, 5 U.S.C. § 552, rather than the Kentucky Open Records Act; NTC referred Mr. Lee to Ms. Windsor's original response, in writing, on the same day. On August 20, 2008, Mr. Lee initiated this appeal, improperly characterizing it as a "Freedom of Information Act Appeal." Upon receiving notification of Mr. Lee's appeal from this office, Assistant General Counsel Amy F. Barker, Department of Corrections, responded on behalf of NTC, correctly observing that Mr. Lee "was required to bring his appeal of the July 14 response to his records request by August 3, 2008, pursuant to KRS 197.025(3) . . . . Mr. Lee also cannot revive his request for records by sending it again and requesting it under the Freedom of Information Act. " According to Ms. Barker, submitting the same request on a later date "does not restart the time for the appeal. The appeal is time-barred and the Attorney General should not render a decision." 1 In short, Ms. Barker is correct on all counts.
As noted, NTC denied Mr. Lee's initial request on July 14, 2008; however, Mr. Lee did not initiate this appeal until August 20, 2008. By its express language, KRS 197.025(3) applies to "any denial" of a request made by an inmate under the Open Records Act. As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing Gateway Construction Co., supra. When viewed in light of these governing principles, the mandatory and express language of KRS 197.025(3) unquestionably validates the position articulated on behalf of NTC.
Because Mr. Lee is "a person confined in a penal facility," and he failed to challenge NTC's denial of his request within twenty days, Mr. Lee's appeal is untimely; this office is precluded from addressing the merits of his appeal by operation of KRS 197.025(3). In our view, 03-ORD-007 and 07-ORD-058 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. To hold otherwise would circumvent the intent of the General Assembly as expressed in KRS 197.025(3).
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 Ms. Barker also correctly notes that citing FOIA "does not entitle Mr. Lee to the records that he seeks." To the contrary, FOIA "has no force as to state records, only the records of a federal agency." 96-ORD-244, citing OAG 91-56.