Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in its disposition of a request for records from inmate Kurt Lowe (Appellant"). For the reasons set forth below, we find that NTC did not violate the Act.
Appellant initiated this Open Records Appeal by letter dated December 25, 2017, challenging the alleged lack of response by NTC to his open records request, dated December 18, 2017, for eleven separate items. Upon receiving notification of the appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of NTC. The copy of Appellant's request provided by Ms. Barker reflected that the request was date stamped as received by the Offender Information Services Office on December 21, 2017. Pursuant to KRS 197.025(7), NTC had five calendar days, excepting Saturdays, Sundays and legal holidays, to respond to the request. A timely response was sent by NTC staff on December 21, 2017, the same day as it was received, as evidenced by the affidavit of Kelly Napier Offender Information Specialist provided by Ms. Barker. Because Appellant failed to include a copy of the December 21, 2017, response by NTC, Ms. Barker asserted that his Appeal is unperfected. Existing legal authority validates her argument.
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."
Appellant 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 Appellant failed to provide a copy of NTC's response as part of his Appeal, the Appeal is 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.