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 (KSR) violated the Kentucky Open Records Act in failing to issue a timely written response upon receipt of Russell Milburn's June 12, 2015, request for "one copy of the e-mail from the [Kentucky] Parole Board to CTO James Ford -- KSR caseworker concerning the parole status of inmate Russell Milburn," sent between September 3, 2014, and November 1, 2015. Having received no written response, by letter dated June 23, 2015, Mr. Milburn appealed "the Open Records [request] being ignored and not answered." 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 asserting that KRS 197.025(7) affords the Department of Corrections (DOC), and facilities under its jurisdiction, including KSR, five business days in which to issue a written response upon receipt of a request properly submitted under the Act. 1
Ms. Barker advised that KSR actually received Mr. Milburn's June 12, 2015, request on Thursday, June 18, 2015, and issued a timely response on Wednesday, June 24, 2015, the fourth business day, as indicated on the "Disposition" section of the request form, a copy of which Ms. Barker attached to her July 2, 2015, appeal response. Quoting the language of 40 KAR 1:030, Section 1, Ms. Barker argued that Mr. Milburn failed to perfect his appeal. Because Mr. Milburn failed to submit a copy of the agency's timely June 24, 2015, response in accordance with KRS 61.880(2)(a), Ms. Barker maintained that "according to this statute and its own regulation, 40 KAR 1:030," the Attorney General's Office is precluded from considering his appeal.
KRS 61.880(2)(a) outlines the procedural 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. 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. " In so far as Mr. Milburn did not provide this office with a copy of the agency's written response, KSR argued that his appeal was incomplete.
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) . . . ." While this provision narrows the window of opportunity during which an inmate may appeal the disposition of his request by DOC or a correctional facility such as KSR, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 11-ORD-073, p. 3. However, even assuming that Mr. Milburn had fully complied with KRS 61.880(2)(a), KSR advised Mr. Milburn that CTO James Ford does not have any e-mail from the Kentucky Parole Board as described. KSR also correctly noted that a public agency cannot produce a nonexistent record for inspection or copying. See 14-ORD-245. CTO Ford further indicated that Mr. Milburn may be referring to the "Parole Recommended Order" that was generated when Mr. Milburn was recommended for Parole on September 15, 2014. If so, KSR advised that he should resubmit his request accordingly. Nothing else is required.
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.
Footnotes
Footnotes
1 KRS 197.025(7) provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, upon receipt of a request for any record, the department shall respond to the request within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, and state whether the record may be inspected or may not be inspected, or that the record is unavailable and when the record is expected to be available.