Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Northpoint Training Center (NTC) violated the Open Records Act in its disposition of inmate Matthew Stacey's (Appellant) open records request for an investigation report. For the reasons stated below, we find that the Appellant failed to afford NTC an opportunity to respond to his open records request before initiating an appeal. Therefore, this office is precluded from addressing the merits of the appeal.
Appellant, an inmate at NTC, initiated an open records appeal by letter dated May 10, 2018. Attached to the appeal was a copy of a Request for Inspection of Records form, dated May 1, 2018. Appellant submitted the request seeking a copy of " the completed investigation report filed by N.T.C.'s Internal Affairs Office concerning the investigation that resulted in [Appellant] being placed in the Restrictive Housing Unit 04/14/2018 due to his involvement in attempting to introducing [ sic ] Dangerous Contraband into the institution." The form is signed by Appellant, but is not signed by the custodian of records. Appellant asserted, in his appeal, that NTC had not responded to his request for records.
Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded on behalf of NTC by letter dated May 21, 2018. Ms. Barker argues that "[t]he appeal is premature since the request was not received until the appeal was filed." She also argues that the appeal "is incomplete because it did not include the response provided to the inmate. " Ms. Barker points out that "KRS 61.880(2)(a) requires the person appealing the record request to 'forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. '" She urged that this Office should not consider the appeal pursuant to its own regulation, 40 KAR 1:030, which states:
Section 1. Form. The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2), requiring the submission of a written complaint to the public agency and the public agency's written response, if the agency provided a response, and 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.
On May 23, 2018, Ms. Barker supplemented the response with an affidavit from Offender Information Specialist Lisa Douglas. Ms. Douglas affirms that Appellant's Request for Inspection of Records form was not received until May 16, 2018. She states that a search was made for the request form, but it could not be located, and it was not logged "in the KOMS 1 system where it would have been saved." Ms. Douglas states that she "stamped the request as received on May 16 when the appeal was received." The affidavit does not address the status of Appellant's request for records.
We find that, under the facts as presented, the Appellant failed to afford NTC an opportunity to respond to his open records request before initiating an appeal. As such, this office is precluded from issuing a decision. KRS 61.880(2)(a) establishes the requirements for an Open Records Appeal. The statute states:
"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."
We interpret this provision to mean that 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 the public agency. See 13-ORD-011; 17-ORD-118. Because Appellant is an inmate confined in a penal facility, KRS 197.025(3) also 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)[.]" These laws, taken together, require inmate appellants to submit "a copy of the written response denying inspection" to perfect their appeals.
Appellant filed his appeal prematurely. The Request for Inspection of Records form Appellant attached to his appeal was not signed by the custodian of records. The form had no date stamp, "received" marking, or any other indication that it was received by the custodian of records. In the response to the appeal, NTC tendered an affidavit affirming that the agency had not received the open records request. The affidavit showed that the open records request was not filed in the custodian's office and it was not logged in the KOMS system. Under these facts, we find that NTC did not receive the open records request form and, therefore, was not afforded an opportunity to respond. This Office has found that KRS 197.025(3) "does not eliminate the requirement that [an inmate] afford the agency an opportunity to respond before initiating an appeal." See 11-ORD-073, pg. 2. NTC correctly points out that 40 KAR 1:030, Section 1 prohibits this office from considering an appeal that fails to conform to the requirements of KRS 61.880(2)(a). Therefore, this Office is precluded from considering the issues presented in this appeal.
A party aggrieved by this decision shall 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 KOMS" is an abbreviation for the Kentucky Offender Management System.