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 Juan Sanders' open records appeal is time barred pursuant to KRS 197.025(3) 1 as construed in 02-ORD-054. A copy of that decision is enclosed and its reasoning adopted in full. Mr. Sanders cannot "resuscitate" a time barred open records appeal by resubmitting it after the twenty day statutory deadline has expired. Here, as in 02-ORD-054, Mr. Sanders attempted to initiate an open records appeal on May 9, 2012, following KSP's May 8, 2012, denial of a series of open records requests. He failed to furnish this office with "the appropriate documents . . . pursuant to the procedures set out in KRS 61.880(2) ." KRS 197.025 (3). On May 21, 2012, this office advised him of the deficiency in his attempted appeal. He did not resubmit the appropriate documents until May 29, 2012, one day after the deadline had expired. A rule of strict compliance applies to tardy appeals. Johnson v. Smith, 885 S.W.2d 944 (Ky. 1994); City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990). Such appeals are subject to automatic dismissal.
Assuming for the sake of argument that Mr. Sanders' appeal was not time barred, KRS 197.025(2) is dispositive of the issues presented. To the extent responsive records exist, those records would be inaccessible because they do not contain a specific reference to him. KRS 61.880(2). As for his remaining allegations of organized gang activity and corruption among corrections employees, we remind him that an open records appeal to the Office of the Attorney General is not the appropriate legal mechanism for addressing these issues. 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.
Distributed to:
Juan Sanders, # 131019Alan BrownAmy V. Barker
Footnotes
Footnotes
1 KRS 197.025(3) states:
KRS 61.870 to 61.884 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.
By its express terms, this provision bars open records appeals submitted by an inmate twenty days after his request is denied. Whatever hardship this may work on the inmate, the twenty day deadline for submission of a perfected open records appeal is not "tolled" during the period of time that elapses between submission of a deficient appeal and submission of an appeal correcting these deficiencies.
2 Mr. Sanders' objections to the timing of KSP's response to his appeal are without merit. Although the Attorney General requests that an agency respond to our notification of receipt of an open records appeal within five days, that five day response time is not grounded in statute or regulation and is often extended. The twenty day deadline for inmate submission of an open records appeal that includes all appropriate documents is grounded in statute, to wit KRS 197.025(3) and cannot be extended.