Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in failing to issue a written response to Kurt J. Lowe's December 18, 2017, request within five working days per KRS 197.025(7). Upon receiving notification of Mr. Lowe's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of NTC. Ms. Barker initially advised that NTC did not receive Mr. Lowe's request until December 21, 2017, as the date stamped copy attached to her appeal response confirms. Also enclosed with Ms. Barker's appeal response was NTC Offender Information Specialist Kelly Napier's January 11, 2018, affidavit in which Ms. Napier confirmed the receipt date and further attested that NTC sent a response to Mr. Lowe on January 2, 2018, notifying him that "additional time was needed to locate and review the records" because the records "had to be requested from multiple sources and then sent" to Ms. Napier; NTC sent a supplemental response on January 5. Ms. Napier also explained that she provided the responsive documents to his Classification and Treatment Officer ("CTO") so that he could have an opportunity to inspect all of the documents. However, the CTO subsequently advised Ms. Napier that Mr. Lowe "refused to sign the form acknowledging inspection when he was allowed to inspect the records."
Ms. Barker correctly noted that NTC had five calendar days, excluding weekends and holidays, in which to issue a written response. KRS 197.025(7). NTC placed its response in the institutional mail on the fourth of the five working days given the weekends and four holidays. Mr. Lowe's appeal was dated December 25, 2017, a holiday, Ms. Barker observed, "and well before the five day response time had run." Citing KRS 446.030 regarding how time must be calculated generally, and prior decisions by this office affirming the validity of relevant provisions of Corrections Policy and Procedure ("CPP") 6.1, Ms. Barker noted that the "five days do not begin until the day after the Open Records Coordinator receives the request in institutional mail. In this case, it was delivered on December 21 (a Thursday) and a response was put in institutional mail to inmate Lowe on the same day." Further discussion of the agency's compliance with KRS 197.025(7) is unwarranted here given that Mr. Lowe's appeal is both premature and unperfected. 1
KRS 61.880(2)(a) establishes the requirements and timeline for initiating an Open Records Appeal. That statute provides:
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. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
In sum, the written request and the agency's written response, if any, comprise the record upon which the Attorney General relies in reviewing the actions of a public agency. 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. "
Mr. Lowe is an inmate confined in a penal facility, and KRS 197.025(3) therefore requires him to "challenge any denial of an open records request with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty days of the denial pursuant to the procedures set out in KRS 61.880(2) . . . ." While this provision narrows the window of opportunity in which an inmate may appeal the disposition of his request by DOC or a correctional facility under its jurisdiction, such as NTC, "it does not eliminate the requirement that he afford the agency an opportunity to respond before initiating an appeal." 11-ORD-073, p. 3. Because Mr. Lowe failed to allow NTC that opportunity, his appeal is both premature and unperfected. See 04-ORD-022; 11-ORD-073; 13-ORD-011; 15-ORD-007.
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 Ms. Barker also correctly asserted that Mr. Lowe's remaining issues regarding purported instances of records concealment, fraud, retaliation, etc . are simply not justiciable in this forum. See 14-ORD-083; 17-ORD-086.