18-ORD-039

18-ORD-039

February 21, 2018

In re:        Kurt Lowe/Northpoint Training Center

Summary:         This Office cannot resolve a factual dispute regarding the date of delivery of an inmate’s open records request and, therefore, cannot determine that a violation of the Open Records Act occurred where there was a period of seven business days between the time the inmate allegedly tendered his open records request to Northpoint Training Center, and the day the agency responded.        

Open Records Decision

Kurt J. Lowe (“Appellant”) initiated this appeal by letter dated January 24, 2018, challenging the timeliness by Northpoint Training Center (“NTC”) in responding to his January 10, 2018, request for a copy of a PREA Investigation Report.¹  The request was stamped as received by the Records Department, NTC, on January 16, 2018. Pursuant to KRS 197.025(7), NTC had five calendar days, excepting Saturdays, Sundays and legal holidays, to respond to the request.² A response was sent by NTC staff on January 22, 2018, with the requested records. Appellant complains, on appeal, that NTC did not provide the records within five (5) business days.

        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. Relying upon prior open records decisions, Ms. Barker first explained that, 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 January 22, 2017.³  Ms. Barker further explained that Corrections Policy and Procedure (“CPP”) 6.1⁴ controls the handling of institutional inmate open records requests, and that the CPP has been determined as an acceptable way to manage the written requests at a prison given its security issues and the special circumstances of prison life and management.⁵  Pursuant to CPP 6.1, An inmate must send the request through institutional mail to the Open Records Coordinator at the institution. An inmate "tendering" a copy of his request to other staff in a different office does not comply with CPP 6.1. Open record requests are date stamped when received in the Office of Information Services within NTC. (Affidavit, Lisa Douglas, Offender Information Specialist.)  The Office of Information Services has no control over when a request is dated or deposited for delivery in the institutional mail by an inmate. If an open records request is put in the institutional mail after the mail has been picked up and processed for the day, it takes longer for processing and delivery.⁶  Appellant’s records request is dated January 10, but Ms. Douglas’ affidavit states that she did not receive it until January 16.

        Ms. Douglas’ affidavit explained the process for inmate mail and open records requests at NTC:

Offender Information Services (OIS) or Records staff check and collect mail from the OIS mailbox continuously throughout the day on regular business days. If another Offender Information Specialist gathers the mail, the Open Record Request is placed in my basket or given directly to me on the same day. I then date stamp the request the day I receive it. If I am not in the office on the day the request is received in the OIS office, another staff person in the office stamps the request on the day it was received.

        There is no explanation in the record for the delay between the date that Appellant claims he “tendered” the request (January 10) and the date that Ms. Douglas states that she received it (January 16). The record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Appellant’s request for this office to conclusively resolve the central factual issue, although the affidavit of Ms. Douglas certainly lends credibility to the position of NTC. Absent objective evidence to the contrary, this office has neither a reason to question the veracity of NTC nor a basis to find a violation. In short, the role of the Attorney General in adjudicating a dispute related to open records is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that legislative mandate. See OAG 89-81; 03-ORD-061; 05-ORD-222; 08-ORD-172; 11-ORD-209.

        We further concur with Ms. Barker’s observation that “[t]he majority of the appeal letter discusses issues outside of the review of an open records appeal.” The Attorney General's Office has acknowledged that it is not the proper forum for and cannot decide issues other than violations of the Open Records Act for appeals initiated under KRS 61.880(1). 17-ORD-086, 14-ORD-083; 14-ORD-049, n. 2; 12-ORD-110; 08-ORD-142, p. 6; 99-ORD-121, p. 17.

        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.

                                                Andy Beshear

                                                Attorney General

                                                Gordon Slone

                                                Assistant Attorney General

#40

Distributed to:

Kurt Lowe, #284794

Loretta New

Amy Barker