Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in a premature open records appeal, and the Attorney General being sufficiently advised, we make no finding on the issue presented. That issue was not ripe for review at the time of the appeal.
On February 22, 2011, inmate Ronald L. Mills submitted a written request to the Department of Corrections Offender Information Services for a copy of the parole violation warrant served on him between January 5, 2005, and January 2, 2007, and the transcript of his parole revocation hearing. On the same day, Mr. Mills submitted a letter to Offender Information Administrator Ashley Simpson in which he questioned DOC's determination that he was not eligible for parole supervision credit for the period from January 5, 2005 to January 2, 2007, and requested a response from DOC confirming "that [his] parole revocation hearing was held and a parole warrant was served upon [him] by the Kentucky State Parole Board or the Kentucky Department of Corrections . . . ." That letter was also mailed to the Attorney General in an apparent attempt to initiate an open records appeal. As noted, the appeal was premature.
KRS 61.880(1) establishes the requirements and timeline for an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Because Mr. Mills is an inmate confined in a penal facility, KRS 197.025(7) extends the statutory deadline for agency response to his request an additional two days for a total of five days. Mr. Mills' request reached DOC's Offender Information Services on March 3, 2011, 1 and DOC responded, through Offender Information Services Branch Manager Johnathan G. Hall, on March 8, 2011. Because Mr. Mills initiated his appeal before five business days had elapsed, and his appeal was therefore premature, we do not address the propriety of that response.
KRS 61.880(2)(a) establishes the requirements and timeline for an open records appeal. That statute provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
Again, because Mr. Mills is an inmate confined in a penal facility, KRS 197.025(3) requires him to "challenge any denial of an open records request with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty days of the denial pursuant to the procedures set out in KRS 61.880(2) . . . ." While this provision narrows the window of opportunity for an inmate appeal of DOC's or a correctional facility's disposition of his open records request, it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal. Because Mr. Mills failed to do so, we are foreclosed from considering the issue presented in his attempted appeal.
By letter dated March 14, 2011, Mr. Mills attempted to perfect his open records appeal to this office by providing us with a copy of DOC's March 8, 2011, denial. While the Attorney General has recognized that "the rules of procedure governing an open records 2 appeal should be relaxed to permit the greatest possible access to this forum," Mr. Mills' error was a fatal one and cannot be corrected after the fact.
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.
Distributed to:
Ronald L. Mills, # 154433Ashley SullivanJonathan S. Milby
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