Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Northpoint Training Center violated the Kentucky Open Records Act in denying Carlos Thurman's request(s) for a copy of the statement that he gave to Internal Affairs on May 14, 2013. By letter dated September 24, 2013, Mr. Thurman initiated this appeal, noting that he received "copies of parts of the May 13th and 14th interview" in response to his August 21 request; however, on September 11 he requested "some more copies of that May 13th and 14th interview" but was denied access. Mr. Thurman attached the September 17 denial by Offender Information Specialist I Kelly Tyree in which Ms. Tyree confirmed receipt of a request on September 11 for "copies of all reports, documents, evidence, other material or information relevant to an interview you say was conducted by Internal Affairs on May 13th or 14th and also phone records and questions pertaining to Officer Michelle Weigel." Ms. Tyree denied the request as the records being sought "are the subject of an ongoing administrative investigation by [NTC] and are exempt from disclosure pursuant to KRS 61.878(1)(h)." On appeal Mr. Thurman advised that he was challenging the September 17 denial because NTC provided the requested statement in response to his August 21 request and he is now being denied access. Mr. Thurman provided this office with a copy of his August 21 request, a copy of the requested statement, and the September 17 denial by NTC of his September 11 request, but did not include a copy of his September 11 request.
Upon receiving notification of Mr. Thurman's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of NTC. She correctly observed that Mr. Thurman included a copy of his August 21 request, in response to which NTC provided him with a copy of the requested statement, a copy of which Mr. Thurman also included. Ms. Barker noted that Mr. Thurman is not appealing this request and he did not include a copy of the September 11 request with his appeal. She argued that in accordance with KRS 61.880(2)(a), and the corresponding regulation, 40 KAR 1:030, Section 1, this office "should determine that the appeal was not properly perfected." Ms. Barker is correct in this assertion.
KRS 61.880(2)(a) establishes the requirements for submitting 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.
40 KAR 1:030, Section 1 provides that "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial. " Because Mr. Thurman did not provide this office with a copy of his September 11 request as required to perfect his appeal under KRS 61.880(2)(a), this office must decline to address the merits of his appeal per 40 KAR 1:030, Section 1. See 05-ORD-033; 12-ORD-144.
Mr. Thurman is an inmate confined in a penal facility, and KRS 197.025(3) therefore 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) . . . ." By letter dated October 9, 2013, Mr. Thurman confirmed that his September 24 letter was an appeal from the denial of his September 11 request, and enclosed a copy of his September 11 request. While this office has recognized that "the rules of procedure governing an open records appeal should be relaxed to permit the greatest possible access to this forum," 94-ORD-34, p. 2, Mr. Thurman's error "was a fatal one and cannot be corrected after the fact." 1 11-ORD-073, p. 3.
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:
Carlos ThurmanKelly TyreeAmy V. Barker
Footnotes
Footnotes
1 In any event, Mr. Thurman's October 9 correspondence was not submitted within 20 days of the September 17 denial; accordingly, his belated attempt to perfect his appeal is untimely and this office is precluded from addressing the merits of the appeal even if his error was not otherwise a fatal one. See 12-ORD-121; 12-ORD-144.