Opinion
Opinion By: Andy Beshear,Attorney General;Taylor Payne,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police (KSP) violated the Kentucky Open Records Act when it redacted certain records when responding to an inmate's open records request. We find that the open records appeal was not submitted to this office within the twenty-day deadline imposed by KRS 197.025(3) and is therefore time-barred. As a result, this office is precluded from addressing the merits of the appeal.
John Martin, an inmate at the Kentucky State Reformatory, submitted an open records request to KSP on July 28, 2016. He requested a copy of the criminal file maintained by KSP pertaining to its investigation of him that resulted in his arrest and subsequent convictions. On October 14, 2016, KSP responded that it would release the investigation records to Mr. Martin upon payment of appropriate fees, but indicated that it would withhold the names and recorded audio interviews of victims, as well as a medical record of one of the victims because public disclosure would constitute an unwarranted invasion of privacy pursuant to KRS 61.878(1)(a). KSP also indicated it would withhold all records furnished by the Cabinet for Health and Family Services (Cabinet) pursuant to Kentucky Revised Statute (KRS) 620.050(5), which requires that all materials obtained by the Cabinet in the course of an investigation remain confidential.
On October 20, 2016, Martin filed an open records appeal to this office, arguing that KSP violated the Open Records Act in the disposition of his open records request. This office returned Martin's appeal because he failed to submit a copy of his original open records request as required by KRS 61.880(2)(a). On November 7, 2016, Martin resubmitted his appeal by an undated handwritten letter to this office which was accompanied by his original open records request.
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.
One of the procedures set out in KRS 61.880 is that a party seeking the Attorney General "to review a public agency's denial of a request to inspect a public record . . . shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection." KRS 61.880(2)(a).
As indicated above, on October 20, 2016, Martin appealed the October 14, 2016, response by KSP to his open records request. Having failed to include the "appropriate documents" per KRS 61.880(2)(a), Martin resubmitted his appeal on November 7, 2016, which exceeds the twenty-day deadline imposed by KRS 197.025(3). "Such appeals are subject to automatic dismissal." 12-ORD-121; see also 15-ORD-225 (dismissing open records appeal that was received by the Attorney General beyond the statutory period of 20 days). Although Martin filed a defective appeal within the twenty-day deadline, the "deadline for submission of a perfected 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-121, n. 2. Accordingly, Martin's appeal is time-barred. See 15-ORD-225 (finding an appeal filed after twenty-day deadline imposed by KRS 197.025(3) to be time-barred) .
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.