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 Kentucky State Reformatory violated the Kentucky Open Records Act in denying Russell Milburn's October 14, 2013, request for "one copy of any SOTP [Sex Offender Treatment Program] recommendation to the Kentucky Parole Board currently in my SOTP file," and/or his request dated October 29, 2013, for a copy of the "complete SOTP parole report" to which SOTP Program Director Dr. James J. Van Nort referred in his August 29, 2013, memorandum to Parole Board Chairperson Shannon Jones. By letter dated November 26, 2013, and received on December 2, 2013, Mr. Milburn initiated the instant appeal, 1 enclosing a copy of his October 14, 2013, request, and the copy of the August 29, 2013, memorandum that was provided in response thereto on October 17, 2013. Mr. Milburn also enclosed a copy of the November 1, 2013, letter directed to him by Dr. Van Nort in response to his October 29, 2013, request, 2 a copy of which Mr. Milburn did not include among the attachments to his appeal.
Upon receiving notification of Mr. Milburn's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR, initially advising that Mr. Milburn failed to include a copy of the October 29, 2013, request to which the November 1, 2013, denial by KSR/SOTP relates in filing his appeal. Quoting the language of KRS 197.025(3), Ms. Barker then correctly observed that the responses attached to Mr. Milburn's appeal were dated October 17, 2013, and November 1, 2013, and his November 26, 2013, appeal is therefore untimely. In the alternative, Ms. Barker noted that Mr. Milburn only challenged the November 1, 2013, denial, in relation to which no written request was provided as required under KRS 61.880(2)(a); therefore, Ms. Barker concluded, this office is precluded from reviewing his complaint per 40 KAR 1:030, Section 1. Even if this office determines that Mr. Milburn's appeal is neither barred under KRS 197.025(3) nor deficient under KRS 61.880(2)(a), Ms. Barker maintained that KSR properly relied upon KRS 61.878(1)(i) and (j) in denying access. Existing legal authority validates the agency's position regarding application of both 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, KSR responded to Mr. Milburn's October 14, 2013, request on October 17, 2013; KSR denied his October 29, 2013, request by letter dated November 1, 2013. Having initially failed to include the "appropriate documents" relative to his October 29 request per KRS 61.880(2)(a), Mr. Milburn resubmitted his appeal by letter dated November 26, 2013, after the statutory time frame of 20 days had elapsed as to both. 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. Milburn is a "person[] confined in a penal facility," and he failed to properly challenge the agency's denial of his request(s) within 20 days, Mr. Milburn's November 26, 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.
Even if Mr. Milburn's appeal was not time-barred, this office would still be precluded from addressing the merits per KRS 61.880(2)(a), pursuant to which:
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.
In sum, the written request and the agency's written response, if any, comprise the record upon which the Attorney General relies in reviewing the actions of a public agency. Thus, 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."
Mr. Milburn 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) . . . ." Because Mr. Milburn failed to submit a copy of his October 29 request, as required to perfect his November 26 appeal, KRS 61.880(2)(a) and 40 KAR 1:030, Section 1 would prohibit consideration of his appeal even if the appeal was not untimely.
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.
# 465
Distributed to:
Russell Milburn, # 246226James J. Van NortAmy V. Barker
Footnotes
Footnotes
1 Mr. Milburn initially attempted to appeal the November 1, 2013, denial by letter dated November 7, 2013; however, Mr. Milburn failed to include a copy of his written request per KRS 61.880(2)(a). By letter dated November 18, 2013, Assistant Attorney General Amye L. Bensenhaver advised Mr. Milburn that his letter was forwarded to her on November 15, 2013, for a response and further notified him of this deficiency, returning his complaint along with attachments.
2 Dr. Van Nort denied his request on the bases of KRS 61.878(1)(i) and (j) as the report is a "preliminary document requested by and prepared for the Parole Board that contains recommendations and opinions and is not intended to give notice of final action of a public agency, thus it is exempt from release." Although KSR elaborated upon this argument in responding to Mr. Milburn's appeal, citing prior decisions by this office which appear to validate its position; however, additional discussion is unwarranted given our determination relative to KRS 197.025(3) and 61.880(2)(a).