Opinion
Opinion By: Andy BeshearAttorney General;J. Marcus JonesAssistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Green River Correctional Complex ("GRCC") violated the Open Records Act in denying an open records request submitted by Robert Flanders ("Appellant"). We find that the appeal is untimely and this office is precluded from addressing the merits, pursuant to KRS 197.025(3). 1
On July 23, 2018, Appellant, an inmate at GRCC, submitted an open records request to obtain copies of nine pictures from his J-pay account. GRCC denied the request by a memorandum issued on the same date, and based the denial on the age of the requested pictures. GRCC states that the pictures were copied in 2016, and "pictures and messages can only be retrieved for the prior six months of the current date." Appellant mailed an appeal challenging the denial to the Attorney General.
On November 20, 2018, Justice and Public Safety Cabinet Attorney Julie C. Foster responded to the appeal on behalf of GRCC. Ms. Foster argued that the appeal is time barred by operation of KRS 197.025(3). She noted that the GRCC mailroom postmark shows that Appellant mailed his appeal on September 12, 2018, and GRCC sent the denial to Appellant on July 23. She argued that Appellant's "twenty days to appeal elapsed on August 12" and he mailed his appeal after its due date.
We find that Appellant failed to mail his appeal of the denial within 20 days and this office is precluded from addressing the merits of the appeal. KRS 197.025(3) required Appellant to appeal the denial of his request within twenty (20) days. We interpret KRS 197.025(3) to require that an appeal "have been mailed or sent no later than" twenty days of the denial. See 17-ORD-175 (finding an appeal untimely because it was not mailed within twenty days of the denial). GRCC responded to Appellant's open records request on July 23, 2018. Therefore, the appropriate documents were due to be "mailed or sent" on or before Monday, August 13, 2018. GRCC is correct that the institutional postmark on the appeal is September 12, 2018. As such, the appeal is 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."