Opinion
Opinion By: Jack Conway, 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 Roederer Correctional Complex did not violate the Open Records Act in the disposition of Eric Cunningham's November 23, 2009, request for good time recommendations made at RCC from January 2005 to November 2005, and from June 2009 to October 2009. Although Mr. Cunningham asserts that he submitted his request on November 23, RCC's open records request log for the relevant period does not reflect receipt of a request from Mr. Cunningham. Under these circumstances, the Attorney General has consistently acknowledged the inability to conclusively resolve a factual dispute concerning actual delivery and receipt of an open records request. See, e.g., 05-ORD-252. Accordingly, we have, as RCC correctly observes, "repeatedly abstained from interjecting [ourselves] into factual disputes between requesters and agencies regarding receipt of requests." It is, however, worthy of note that, pursuant to KRS 197.025(7), correctional facilities are afforded five business days, and not three business days as Mr. Cunningham suggests, to respond to an open records request. See, e.g., 98-ORD-146.
Nevertheless, having been apprised of Mr. Cunningham's request and subsequent appeal to this office by receipt of our 40 KAR 1:030 Section 2 notification, RCC agreed to furnish him with records responsive to his request upon delivery of a CPO from Mr. Cunningham to the appropriate records custodian. 1 This response is entirely consistent with KRS 61.872(3)(b), KRS 61.874(1), the recognition that the Open Records Act contains no provision for the waiver of copying fees for any party, including inmates, 2 and the recognition that an inmate "must accept the necessary consequences of his confinement, including policies relating to application for, and receipt of, public records." See, e.g., 95-ORD-105. 3 We find no error in its response.
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.
Eric Cunningham, # 15116James SweattJonathan S. Milby
Footnotes
Footnotes
1 RCC notes that the requested records would be provided to Mr. Cunningham "subject to any applicable statutory limitations." If, upon receipt of a CPO from Mr. Cunningham, RCC identifies protected information in the responsive records, it is obligated to generally describe the information, cite the legal authority supporting nondisclosure, and explain how that authority applies to the information withheld.
2 See, e.g., 99-ORD-30.
3 These policies cannot "amend, alter, enlarge, or limit the terms" of the Open Records Act. Department of Corrections v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) citing Camera Center, Inc. v. Revenue Cabinet, 34 S.W.3d 39, 41 (Ky. 2000) et al. In Chestnut, the Kentucky Supreme Court held that a Corrections policy that contained an open records requirement not found in the Act "provide[d] no relief to the DOC . . . because it purports to add a requirement not found in the statutes."
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