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 G. Milburn's January 27, 2014, request for "a copy of the 'Complete SOTP [Sex Offender Treatment Program] parole report' that was referenced to [sic] in the August 29, 2013 memo" by SOTP Program Director Dr. James J. Van Nort in his August 29, 2013, memorandum to Parole Board Chairperson Shannon Jones. KSR -- SOTP received Mr. Milburn's request on February 4, 2014, and Dr. Van Nort denied it by letter dated February 5, 2014, advising that said 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 per KRS 61.878(1)(i) and (j)." Dr. Van Nort further noted that his current denial was consistent with his October 29, 2013, denial of Mr. Milburn's previous request for the report. Mr. Milburn initiated the instant appeal by letter dated February 11, 2014.
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, correctly observing that in 14-ORD-010 this office determined that Mr. Milburn's Open Records Appeal challenging the agency's initial disposition of his identical request was time-barred. Ms. Barker argued that "[a]n inmate cannot restart the time allowed to appeal an open records decision by simply sending a new request for the same record. He is still time barred because of his late first appeal." Existing legal authority validates the agency's position.
In 08-ORD-209, this office reasoned as follows in affirming the denial by Northpoint Training Center of an inmate's request because his appeal of the agency's initial disposition of his identical request was untimely:
As noted, NTC denied Mr. Lee's initial request on July 14, 2008; however, Mr. Lee did not initiate this appeal until August 20, 2008. By its express language, KRS 197.025(3) applies to "any denial" of a request made by an inmate under the Open Records Act. As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing Gateway Construction Co., supra. When viewed in light of these governing principles, the mandatory and express language of KRS 197.025(3) unquestionably validates the position articulated on behalf of NTC.
Id., p. 2. The instant appeal presents no basis to depart from this governing precedent; accordingly, this office reaches the same result and consideration of the substantive arguments made by KSR is unnecessary.
Because Mr. Milburn is "a person confined in a penal facility," and his November 26, 2013, appeal of the agency's November 1, 2013, denial of his October 29, 2013, request for the identical SOTP report was untimely, this office is precluded from addressing the merits of his February 11, 2014, appeal of the agency's February 5, 2014, denial of his January 27, 2014, request for the same document 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)." 08-ORD-209, p. 2; 14-ORD-010. See also 10-ORD-031.
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:
Russell G. Milburn, # 246226James J. Van NortAmy V. Barker