Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in failing to issue a written response to inmate Uriah Pasha's ("Appellant") open records request within five working days per KRS 197.025(7). We cannot resolve a factual dispute concerning the receipt of Appellant's request. Therefore, there is no basis upon which to find that NTC failed to issue a timely written response. We find that Appellant initiated his appeal prematurely, as he did not allow time for mail delivery of his request, and he did not perfect his appeal. As such, the appeal is premature and the issues presented are not ripe for review.
On December 14, 2018, Appellant, an inmate at the Kentucky State Penitentiary in Eddyville, mailed a Request to Inspect Public Records form to NTC in Burgin, Kentucky. Appellant sent the request seeking copies of dismissed disciplinary reports and corresponding reviews from the warden's office. On December 21, 2018, Appellant mailed an appeal to this office. In his appeal, Appellant argued that NTC did not respond within five days, failed to search for records, and failed to explain why records did not exist. Appellant did not attach a copy of a written response to his appeal.
Upon receiving notification of the appeal, Justice and Public Safety Cabinet Attorney Amy V. Barker responded on behalf of NTC. Ms. Barker argued that the appeal is premature because Appellant allowed no time "for mail to reach NTC or for a return response to be mailed back to . . . Eddyville before the appeal was mailed [.]" She noted that NTC "has five calendar days, excepting Saturdays, Sundays and legal holidays pursuant to KRS 197.025(7) to respond." Ms. Barker argued that the response to the Appeal was not due to be mailed by NTC until Friday, December 21, 2018 and "[t]he response would then have to travel in the U.S. Mail from Burgin to Eddyville and be delivered to [Appellant]."
This office has consistently acknowledged the inability to conclusively resolve a factual dispute regarding the actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-204; 18-ORD-006. More specifically, the Attorney General has recognized that "this office is not equipped to resolve factual dispute [s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3; 14-ORD-132. The record here does not contain any evidence concerning the date upon which NTC received Appellant's request. As such, there is insufficient evidence in the record to refute NTC's position. In the absence of any irrefutable proof that NTC actually received Appellant's December 14 request prior to his appeal, this office is unable to find that NTC violated the Act in failing to issue a written response within five business days per KRS 197.025(7). See 18-ORD-006; 18-ORD-116.
This office also has no reason to question the veracity of Appellant, but does note that his request is dated Friday, December 14, 2018, and his letter of appeal is dated for the following Friday, December 21, 2018. Even assuming the NTC actually received Appellant's request on the following workday after it was mailed, Monday, December 17, 2018, NTC was not statutorily required to mail a response until the fifth workday following receipt, December 14, 2018, the date on which Appellant mailed his appeal to our office. For this reason, we find that the appeal is premature.
In addition, Appellant did not comply with the requirements for perfecting his appeal. KRS 61.880(2)(a) establishes the requirements and timeline for initiating an Open Records Appeal. That statute provides, in pertinent part:
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.
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. Under 40 KAR 1:030, Section 1, "[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. As such, KRS 197.025(3) further 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. Appellant mailed his appeal without affording NTC an opportunity to respond, and he did not attach a copy of that response to his appeal. Therefore, the appeal is both premature and unperfected. See 04-ORD-022; 11-ORD-073; 13-ORD-011; 15-ORD-007.
Either party aggrieved by this decision may appeal 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.