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 the Louisville Metro Police Department did not violate the Open Records Act in the disposition of Juan Sanders-El's request for copies of "all written and oral documentation and communications from [10/28/02 10 pm - 10/29/02 11 pm] pertaining to the LMPD's surveillance [at 3902 Vantage Place], [Mr. Sanders-El's] arrest, and the execution of [a] search warrant, including but not limited to: 911 calls, radio transmissions, grand jury testimony, police reports, etc." LMPD properly asserts, and the record on appeal confirms, that although Mr. Sanders-El's request was dated October 22, 2010, it was not mailed from the correctional facility in which he is confined until December 2, 2010. Further, the record on appeal confirms that the request was not postmarked until December 3, 2010. LMPD did not provide the Attorney General with a date stamped copy of the request but states that it reached the agency on December 8, 2010, and that the agency issued a response on December 10, 2010. Clearly, Mr. Sanders-El's appeal, which was dated December 2, 2010, was premature.
KRS 61.880(1) affords a public agency "three days, excepting Saturdays, Sundays, and legal holidays, after the receipt of [an open records] request" to determine whether it will comply with the request, requiring the agency to "notify in writing the person making the request, within the three day period, of its decision." The Attorney General has, on several occasions, applied the "computation of time" provision found at KRS 446.030 to exclude from the three day response time the day on which the request reaches the agency. See, e.g., 96-ORD-207; 10-ORD-010. Assuming the request reached LMPD on December 8, as the agency indicates, its response should have been issued on or before December 13, 2010. LMPD issued a response to Mr. Sanders-El's request on December 10, 2010.
How or why that request, dated October 22, was not transmitted until December 2 is unclear. What is clear is that Mr. Sanders-El's December 2 appeal was premature. In a recent Kentucky Supreme Court opinion, the Court rejected the argument that because the Open Records Act does not provide a deadline for appealing agency denial to the Attorney General or circuit court, "the thirty day deadline of KRS Chapter 13B (governing appeals of administrative decisions) should apply" to an open records appeal. Department of Revenue v. Wyrick, 323 S.W.3d 710, 712 (Ky. 2010). The Court refused to read a deadline for filing an appeal into the law where the legislature intentionally omitted one. Implicit in the Court's opinion was the recognition that where the legislature intentionally includes a deadline, such as it did at KRS 61.880(1), we are all bound to observe it. This includes Mr. Sanders-El. His attempt to appeal LMPD's purported failure to respond to a request that was placed in the mail on the same day warrants no further action. LMPD committed no procedural violation of the Open Records Act in responding to that request.
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.
Juan Sanders-El, # 131019Alicia SmileyMike O'Connell