Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex violated the Kentucky Open Records Act in denying Rodney Beckham's October 22, 2013, request for a copy of the "extraordinary occurrence report/regarding sexual assault/harassment complaint filed 5-6-13" and the "I.A. conclusion of investigation." EKCC received Mr. Beckham's request on November 1, 2013, and issued a timely written response per KRS 197.025(7) on November 6, 2013, denying Mr. Beckham's request and quoting (without citing) KRS 197.025(1). Mr. Beckham initiated this appeal by letter dated December 2, 2013, and received in this office December 4, 2013. 1 Upon receiving notification thereof, Assistant Counsel Linda M. Keeton, Justice and Public Safety Cabinet, responded on behalf of EKCC. Ms. Keeton correctly asserted that Mr. Beckham's appeal cannot succeed given that he filed it beyond the statutory timeframe set forth in KRS 197.025(3); alternatively, she maintained that EKCC properly invoked KRS 197.025(1), explaining that Mr. Beckham "made allegations of sexual abuse against a staff member who is still employed at EKCC. There were also numerous staff and witnesses involved in the investigation, therefore, releasing an Extraordinary Occurrence Report (EOR) that identifies the individuals involved in the investigation would 'constitute a threat' to those persons."
Existing legal authority construing the mandatory language of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), including 10-ORD-005, a copy of which is attached for the parties' reference, validates the agency's denial; however, this office is precluded from otherwise addressing the merits of Mr. Beckham's appeal pursuant to KRS 197.025(3) and 61.880(2)(a).
Pursuant to KRS 197.025(3):
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.
As previously indicated, EKCC denied Mr. Beckham's October 22, 2013, request by letter dated November 6, 2013. Having initially failed to include the "appropriate documents" per KRS 61.880(2)(a), Mr. Beckham resubmitted his appeal by letter dated December 2, 2013, after the statutory time frame of 20 days had elapsed. 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." 12-ORD-121, p. 2 ("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."); 12-ORD-144; 12-ORD-203. Because Mr. Beckham is a "person[] confined in a penal facility," and he failed to properly challenge the agency's denial of his request within 20 days, Mr. Beckham's December 2, 2013, appeal is time-barred; accordingly, this office is 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). See 02-ORD-54; 07-ORD-058; 08-ORD-209; 14-ORD-001.
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:
Rodney Beckham, # 196078Sonya WrightLinda M. Keeton
Footnotes
Footnotes