Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Luther Luckett Correctional Complex ("LLCC") violated the Open Records Act in denying an open records request submitted by Cody Austin ("Appellant"). On March 16, 2018, Appellant, an inmate at LLCC, submitted an open records request to obtain copies of two records. Appellant sought a "copy of detailed pay-out regarding restitution ordered," and a "receipt from designated recipient." The correctional facility denied the open records request on April 11, 2018. Appellant mailed an appeal challenging the denial to the Attorney General. The institutional mailroom postmark on the mailing envelope shows that Appellant mailed his appeal on May 4, 2018.
On May 15, 2018, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded to the appeal on behalf of LLCC. Ms. Barker argues that the appeal is time barred by operation of KRS 197.025(3) 1. Specifically, she states that LLCC sent the response to the open records request on April 11, and therefore, Appellant's twenty (20) day filing deadline was May 1, 2018. Ms. Barker argued that Appellant was barred from filing the appeal because he did not file his appeal until after the twenty (20) day period had expired. Ms. Barker cites a long line of decisions from this Office to support her argument.
We find that Appellant failed to initiate his appeal of the denial within twenty days, and this Office is precluded from addressing the merits of the time-barred appeal. KRS 197.025(3) required Appellant to appeal the denial of his request within twenty (20) days. This Office interprets KRS 197.025(3) to require that an appeal "have been mailed or sent no later than" the due date. See 17-ORD-175 (finding an appeal untimely because it was not mailed within twenty days of the denial). LLCC provided Appellant with a response to his open records request on April 11, 2018. Therefore, the appropriate documents were due to be "mailed or sent" on or before May 1, 2018. The institutional postmark shows that Appellant placed his appeal in the mail on May 4, 2018. The appeal is therefore untimely.
This Office is precluded from rendering a decision on the issues raised in this appeal. 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); 15-ORD-225. "Such appeals are subject to automatic dismissal." 12-ORD-121. By its mandatory and express language, KRS 197.025(3) applies to any denial of an open records request submitted by all persons confined in a penal facility. Because Appellant is a "person[] confined in a penal facility," and because he failed to properly challenge the denial of his request within twenty days, this appeal is untimely and this Office is precluded from addressing the merits of his appeal by operation of KRS 197.025(3). 10-ORD-031; 17-ORD-134; 17-ORD-250. 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; 17-ORD-218.
A party aggrieved by this decision may appeal it 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 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 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."