Request By:
Freddie Hayes, # 066109
Kim Campbell
Amy V. Barker
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Freddie Hayes initiated this appeal by letter dated January 20, 2017, challenging the denial by the Kentucky State Reformatory of his January 20, 2017, request "to review the [contents] of sex offender evaluation report" and receive one copy of the report. Mr. Hayes noted on his January 20, 2017, request that he asked to review the same report on January 9, 2017. In the section of the request form entitled, "Disposition," Offender Information Specialist Kim Campbell advised Mr. Hayes on January 23, 2017, that his January 20, 2017, request was "Denied -- see attached." Mr. Hayes included a copy of the January 20, 2017, request form with his appeal of the same date, but failed to include a copy of the attached written denial by KSR. Because of this deficiency, the Attorney General must respectfully decline to render an Open Records Decision resolving Mr. Hayes' appeal dated January 20, 2017.
Upon receiving notification of Mr. Hayes' appeal from this office, Assistant General Counsel Amy V. Barker responded on behalf of KSR. Ms. Barker observed that Mr. Hayes failed to attach to his appeal the additional pages of the response by KSR that contained the basis for the agency's January 23, 2017, denial; he also failed to include a copy of his January 9, 2017, request and the January 20, 2017, response by KSR. 1 Ms. Barker provided this office with copies of all relevant correspondence. Quoting KRS 61.880(2)(a) and 40 KAR 1:030, Section 1, Ms. Barker correctly asserted that Mr. Hayes failed to perfect his appeal. 2 Ms. Barker also noted that Mr. Hayes' appeal is now time-barred relative to his January 9, 2017, request, as KSR denied the request on January 20, 2017, and KRS 197.025(3) requires any inmate to appeal the denial of a request within twenty (20) days. Sending a new request for the same record, Ms. Barker noted, "does not restart the time for appeal." 3 Even if Mr. Hayes' appeal was perfected relative to his January 20, 2017, request, and was not time-barred relative to his January 9, 2017, request, Ms. Barker advised that he is not entitled to his evaluation report under existing legal authority, including 14-ORD-008, 16-ORD-146, and 16-ORD-148.
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. Hayes' January 20, 2017, request on January 23, 2017; KSR explained to Mr. Hayes that Dr. James Van Nort, custodian of the report, issued a written response on January 20, 2017, to his original request dated January 9, 2017. Ms. Campbell further advised that "Offender Information is not the custodian of the record you requested" and referred Mr. Hayes to Dr. Van Nort's original response. Mr. Hayes included a copy of his "Inmate Money Transfer Authorization" dated January 9, 2017, but failed to include a copy of Ms. Campbell's written denial in filing his appeal.
In summary, Mr. Hayes failed to include all of the "appropriate documents" relative to his January 20, 2017, request per KRS 61.880(2)(a), in omitting the agency's complete denial of January 23, 2017; likewise, Mr. Hayes failed to provide this office with a copy of his January 9, 2017, request and the agency's January 20, 2017, response thereto. Accordingly, Mr. Hayes's appeal is deficient relative to both his January 9, 2017, request and his January 20, 2017, request. Because Mr. Hayes is a "person[] confined in a penal facility," and he failed to submit all of the necessary documentation per KRS 197.025(3), Mr. Hayes' appeal is not perfected; the Attorney General therefore respectfully declines to review the merits of his appeal. See 15-ORD-137.
Either party may appeal this decision may appeal 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 must 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 In a reply letter dated February 20, 2017, Mr. Hayes advised that he did not provide this office with a copy of his January 9, 2017, request because KSR did not return a copy to him. However, "neither KRS 61.880(2)(a) nor any other provision of the Kentucky Revised Statutes requires a public agency to return a copy of an open records request to the requester when it responds to that open records request." 14-ORD-004, p. 2, note 1.
2 Pursuant to KRS 61.880(2)(a):
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. . . .
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."
3 The Attorney General's Office has affirmed this position. See 14-ORD-054.