Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Darryl Burrell initiated this appeal challenging the October 14, 2015, denial by the Kentucky State Penitentiary (KSP) of his October 6, 2015, request for an "itemized statement of out of pocket Department costs for restitution stemming from 4-1 Disciplinary Action that I am paying." KSP Offender Information Supervisor Amy Roberts advised Mr. Burrell that a public agency cannot provide a requester with access to a nonexistent record and that "Inmate [A]ccounts" conducted a search for the statement but it "could not be located." Mr. Burrell disputed the agency's position that no such record exists based on documentation attached to his letter of appeal, namely the letter directed to him by Little Sandy Correctional Complex (LSCC) on October 1, 2015, advising that when he was transferred to Eastern Kentucky Correctional Complex (EKCC) from LSCC the "requested paperwork" was forwarded as well. LSCC further indicated that EKCC forwarded a copy to KSP.
Upon receiving notification of Mr. Burrell's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSP. Ms. Barker initially noted that KSP received Mr. Burrell's October 6, 2015, request on October 7, 2015, and issued a timely written response within five business days per KRS 197.025(7) on October 14, 2015. 1 However, the Office of the Attorney General issued the notification of his appeal on November 18, 2015, (the date on which it was received), more than thirty (30) days after the agency's response was issued to Mr. Burrell. Accordingly, Ms. Barker correctly observed that Mr. Burrell's undated appeal is time barred as he failed to challenge the agency's denial within twenty (20) days per KRS 197.025(3), pursuant to which:
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.
KSP responded to Mr. Burrell's October 6, 2015, request on October 14, 2015. This office received Mr. Burrell's appeal on November 18, 2015, beyond the statutory period of 20 days. 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. Burrell 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. Burrell's appeal, received in this office November 18, 2015, is time barred; 2 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; 15-ORD-137.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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.
2 Even assuming that Mr. Burrell's appeal was timely under KRS 197.025(3), Ms. Barker advised in the alternative that KSP staff ultimately indicated any responsive statement would not have been generated at KSP and if the document was forwarded to KSP by a different institution it would have been properly destroyed in 2013 pursuant to disposition instructions for Records Series 05542 (Inmate Account File) on the Department of Corrections Records Retention Schedule . Attached to Ms. Barker's December 3, 2015, appeal response was a copy of an e-mail from KSP Inmate Accounts confirming that "[i]n 2012 these files were sent from Inmate Accounts to the Warehouse and according to [records series] 05542 they are retained for 5 years then destroyed. Meaning if this file originated in 2008, it was destroyed in 2013." KSP cannot produce that which it does not have nor does the inability of the agency to produce a nonexistent record violate the Open Records Act. See 13-ORD-073 (documents requested were properly destroyed in accordance with applicable retention schedule); 15-ORD-199.