Opinion
Opinion By: Jack Conway, 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 the disposition of Larry W. Watkins' October 21, 2009, request for copies of all of his "mental health records from the Kentucky Department of Corrections." By memorandum dated October 22, 2009, Bobby Moore, LAC Records Department, correctly advised Mr. Watkins that advance payment for copies may be required under KRS 61.874(1),
Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), and prior decisions by this office. In a letter directed to Mr. Moore on November 6, 2009, Mr. Watkins asked to inspect said records in lieu of receiving copies due to his indigent status. On November 13, 2009, Mr. Moore advised Mr. Watkins that Sherry Campbell, Facility Psychiatrist, had indicated to him that "she was working on a report from a recent interview" with Mr. Watkins and "when she finished the report she would call [Mr. Watkins] over to Medical so [he could] review it." Mr. Watkins initiated this appeal by letter dated January 11, 2010. Upon receiving notification of Mr. Watkins' appeal from this office, Cole Carter, Assistant General Counsel, Corrections Corporation of America, responded on behalf of LAC, indicating that a review of the appeal confirmed that it "corresponds with a response from the LAC [R]ecords [C]ustodian that is dated November 13, 2009." Citing KRS 197.025(3), Mr. Carter argued that Mr. Watkins' appeal is time-barred. 1 We agree. However, as a courtesy, LAC asked the Medical Department "to contact the appellant to address any concerns he has."
As noted, LAC denied Mr. Watkins' initial request on October 22, 2009. Mr. Watkins then revised his request by asking to inspect rather than receive copies of the records; LAC responded on November 13, 2009. 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 LAC.
Because Mr. Watkins is "a person confined in a penal facility," and he failed to challenge LAC's disposition of his request within twenty days, Mr. Watkins' appeal is untimely; this office is therefore precluded from addressing the merits of his appeal by operation of KRS 197.025(3). To hold otherwise would circumvent the intent of the General Assembly as expressed in KRS 197.025(3). In our view, 07-ORD-058 and 08-ORD-209 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. 2
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.
Larry E. Watkins, # 096394Bobby MooreCole CarterAmy V. Barker
Footnotes
Footnotes
1 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.
2 In response to an electronic inquiry from the undersigned counsel sent on February 11, 2010, Mr. Carter advised that Mr. Watkins ultimately visited the Medical Department to inspect the record described in Mr. Moore's November 13, 2009, response, at which time he requested "all of his medical records for the preceding 24 years." Although LAC was "not able to fulfill that request in full," Ms. Campbell had informed Mr. Carter that LAC was "able to provide access to all of the records" in the custody of the agency, "spanning a period of four preceding years." Pursuant to 40 KAR 1:030, Section 6, any issues related to records provided to Mr. Watkins were rendered moot upon the agency's release of same.