Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Summary : Under KRS 197.025(3), all persons confined in a penal facility shall challenge any denial of a request made under the Open Records Act by sending the "appropriate documents" to the Attorney General per KRS 61.880(2) within twenty (20) days of the denial. Because inmate requester failed to provide this office with the "appropriate documents" within the statutory period, this office is precluded from addressing the merits of the appeal. However, the appeal is moot per 40 KAR 1:030 Section 6 as to records that KSP ultimately provided.
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Kentucky Open Records Act in the disposition of James Hightower's April 3, 2017, request for "one complete copy of [the] investigation" KSP Detective David Zimmerman and Trooper G. Faulkner conducted into the October 25, 2014, assault perpetrated against him at Eastern Kentucky Correctional Complex ("EKCC"). By letter dated April 19, 2017, KSP advised Mr. Hightower that Case No. 08-14-0772, "was recently concluded in the criminal court system," but remained "in active use, pending finalization of documentation to the case and administrative review for closure." However, the KSP Records Custodian explained that she had "requested a copy of the records be forwarded to this office immediately upon finalization of the case, at which time additional time will be required for this office to review the records and complete any necessary redactions. " 1 KSP indicated that either the records "or a letter requiring payment for production of the records should be mailed to you on or before May 30, 2017."
Having received no further correspondence from KSP, Mr. Hightower sent a follow-up letter to KSP marked "June 2017," but advising that it was being sent on July 8, 2017. Mr. Hightower initiated this appeal by letter dated October 4, 2017. Upon receiving notification of Mr. Hightower's appeal from this office, counsel for KSP advised that a response was issued to Mr. Hightower on October 16, 2017, and copies of the records in dispute were enclosed with limited redactions made pursuant to KRS 61.878(1)(a); 2 KSP also withheld "video footage taken inside the jail" pursuant to KRS 197.025 (presumably subsection (1)), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 3 KSP cited the statutory exceptions being relied upon per KRS 61.880(1), but failed to provide any explanation of how the cited exceptions applied to records being withheld as that provision and KRS 61.880(2)(c) require. A public "agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " The language of KRS 61.880(1) "directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); see 16-ORD-039. However, the instant appeal is now moot per 40 KAR 1:030 Section 6 as to records that KSP ultimately provided; the appeal is also untimely.
Even assuming that Mr. Hightower appropriately waited until after the May 30, 2017, deadline that KSP designated, the statutory timeframe in which Mr. Hightower was required to submit his appeal from the agency's denial of his request has expired. 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.
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." 10-ORD-031; 12-ORD-072; 12-ORD-203. By its mandatory and express language, KRS 197.025(3) applies to any denial of a request submitted by any inmate under the Open Records Act. Because Mr. Hightower is a "person[]confined in a penal facility," and he failed to challenge the denial by KSP within 20 days per KRS 197.025(3), his appeal is untimely and this office must respectfully decline to address the merits of his appeal. 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.
Either party may appeal this decision 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 must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The record is unclear as to when KSP actually received the April 3 request; however, KSP did not indicate that receipt was delayed or provide any explanation for the apparent delay in responding 12 working days later on April 19. Insofar as KSP failed to either issue a written response within three business days of receipt, indicating that all existing responsive documents would be provided upon receipt of payment for the copies, or cite the applicable statutory exception(s) and explain how it applied to any records being withheld in writing per KRS 61.880(1), its response violated the Act. KSP failed, in the alternative, to expressly invoke KRS 61.872(5) and satisfy the requirements of that statutorily recognized exception to KRS 61.880(1). See 16-ORD-210; 16-ORD-272.
2 The Kentucky Supreme Court affirmed the categorical redaction of personal information of private individuals contained in law enforcement records in Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013), recognizing that "[p]rivate citizens ? have a compelling interest in the privacy of law enforcement records pertaining to them." This office has also had occasion to affirm the "categorical redaction" of identifying information of private individuals pursuant to Kentucky New Era in a variety of contexts when there was no basis on which to distinguish it. 14-ORD-067; 14-ORD-108; 14-ORD-123; 14-ORD-127; 14-ORD-178; 15-ORD-193; 16-ORD-120; 16-ORD-121; 16-ORD-188; 17-ORD-066.
3 KRS 197.025(1) provides that, "KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." KRS 197.025(1) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are removed from application of the Open Records Act. This office has affirmed denials by correctional facilities of similar inmate requests for security videos in prior decisions, including, 04-ORD-017, 08-ORD-054, 11-ORD-184, and 15-ORD-010.