Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Penitentiary violated the Open Records Act by its disposition of a series of requests from an inmate that were identical, or nearly identical, to each other. As set forth below, we find no substantive violation of the Act by Kentucky State Penitentiary in its disposition of the requests.
Background . On September 7, 2017, Rodney Smith, an inmate at Kentucky State Penitentiary ("KSP"), requested to inspect video recordings from two separate dates where he was escorted from one location to another location in the facility. He requested "video footage from April 19, 2017 from escort (s) -- (1) from 12-Right Cell # 11 to the strip out cage in (3) cell-house, also I would like to inspect (medical escort) date April 25, 2017 in (3) cell house which is also handheld video footage. " The request was received by KSP on September 8, 2017, and an initial written response was provided to Mr. Smith stating that "additional time is needed to review the records requested due to the amount of research required . . . ." KSP advised Mr. Smith that the final response would be provided on or before September 20, 2017. On September 20, Mr. Smith was allowed to view the video but refused to sign a form attesting that he had viewed the video. A memorandum, dated September 20, 2017, from Catherine Weicht, Open Records, KSP, to Mr. Smith, commemorated that he had been given the opportunity to view the April 19th video, but that he had refused to sign the form. The September 20, 2017, memorandum also explained that, according to Brent Thomas, HDR Network Analyst III, the requested video from April 25, 2017, does not exist and that the agency was not in possession of the requested video. The records regarding this request and disposition were not appealed by Mr. Smith, but were provided by the agency to this Office in the course of the appeal of later requests.
Appeal . On September 20, 2017, the same day that Mr. Smith was provided the opportunity to view the April 19th video, he made an almost identical request for an April 18th video, as well as a duplicate request for the April 25th video. He requested video "from April 18, 2017 -- escort from 3-cell house strip out cage to (12-Right-#11) Also, handheld video footage from April 25, 2017 -- medical escort to (3-cell house) medical room." The request was dated September 20, 2017, and stamped as received by KSP on September 21, 2017. KSP has five calendar days, excepting Saturdays, Sundays and legal holidays, pursuant to KSR 197.025(7), to respond to record requests. KSP timely responded on September 28, 2017, and explained that additional time was needed "to review the records requested due to the amount of research required, the length of period given, the extremely large volume of open records being received at this time and it is not readily available to be retrieved." 1 KSP stated that it would issue a final response on or before October 6, 2017. On October 6, 2017, Catherine Weicht responded in writing to the request for the April 18th video: "[Y]ou have been provided the opportunity to view the DVD as documented on the attached memo. " The referenced memorandum stated "On, October 6, 2017, CTO Marshall Peek picked up [the] requested DVD from this office." The memo, witnessed by Mr. Peek's signature, notes that Mr. Smith "refused to watch [the video] or sign [the memorandum stating that his request had been fulfilled]." Ms. Weicht also responded to the request for the April 25th video recording by explaining that Brent Thomas, HDR Network Analyst III, had confirmed that "no such video exists." On October 11, 2017, Mr. Smith again requested to view the April 18th and April 25th video recordings. By letter dated October 27, 2017, Mr. Smith appealed the denial of his request to view the April 18th and April 25th videos.
On appeal, Amy Barker, Assistant General Counsel, Justice and Public Safety Cabinet, argued that the appeal is time-barred by KRS 197.025(3), 2 which only allows an inmate twenty (20) days to challenge the agency's denial. According to the record on appeal, Mr. Smith was given the opportunity to view the April 18th video on October 6, 2017, and was informed that same day that the April 25th video did not exist. Mr. Smith would have had through October 26, 2017, to file his appeal with this Office. However his letter of appeal is dated October 27th, thus providing certainty that the 20-day appeal period had lapsed before he even prepared the letter of appeal. We concur with Ms. Barker's argument as to the appeal being time-barred.
Regarding Mr. Smith's request on October 11, 2017, again for the April 18th and April 25th videos, this Office has held that a subsequent request for the same records does not revive the appeal rights forfeited by an inmate's previous failure to appeal within the allotted time. We adopt the reasoning in 14-ORD-054, attached, and find Mr. Smith's appeal untimely due to the expiration of his appeal time from the October 6th denial. Accordingly, we do not reach the merits of the appeal.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.872(5) requires the public agency, if it will delay inspection beyond three business days, to provide "a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection." Although KRS 197.025(7) modifies the three-day period to a five-day period, the requirement to provide the detailed explanation is not negated. In this instance, KSP's explanation for delaying inspection failed to meet the "detailed explanation" standard and thus constituted a procedural violation of the Act. See 95-ORD-115 (Cabinet erred in postponing requester's access to nonexempt records while it "processed" her request); 05-ORD-134 (Cabinet's failure to provide a detailed explanation of the cause for the delay in affording requester access to public record within three working days, as required by KRS 61.872(5), constituted a violation of the Act that could be corrected in the future if the Cabinet would be guided "by the fundamental principle that the procedural requirements of the Open Records Act 'are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request.' 93-ORD-134, p. 9.").
2 KRS 197.025(3) states: "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."