Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police ("KSP") violated the Kentucky Open Records Act in denying inmate Shafi Khan's request for a copy of his DNA test results. For the reasons stated below, this office is barred from addressing the merits of Mr. Khan's appeal.
By request dated January 2, 2019, Mr. Khan ("Appellant") made a request to the Kentucky State Police ("KSP") for a copy of his DNA test results. 1 On January 16, 2019, Stephanie Dawson, Official Custodian of Records, KSP, denied the request. KSP explained the reason for denying the request:
Please be advised that the reports requested relate to DNA analysis. Accordingly, your request is denied pursuant to KRS 17.175(4), which states that records produced from DNA samples shall be used only for law enforcement purposes and shall be exempt from the provisions of KRS Chapter 61, and 61.878(1)(l), which states that records made confidential by another Act of the General Assembly shall remain exempt from disclosure. See also 03-ORD-126, 05-ORD-251, and 14-ORD-085.
By letter dated February 16, 2019, Appellant appealed KSP's denial. KSP responded to the appeal by letter dated March 4, 2019, asserting that this office is foreclosed from reviewing the appeal, under KRS 197.025(3), which 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.
KSP's denial of the request is dated January 16, and Appellant's appeal of that denial is dated February 16, well beyond the 20-day period set forth in KRS 197.025(3).
Because Appellant is a "person[] confined in a penal facility," and he failed to challenge the agency's denial of his request within 20 days, his appeal is time-barred by operation of KRS 197.025(3). 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). "Such appeals are subject to automatic dismissal." 12-ORD-121, p. 2; 12-ORD-144; 12-ORD-203. 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. Accordingly, this office cannot review the merits of the appeal.
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.
Footnotes
Footnotes
1 Appellant requested:
[C]opies of all documents generated in relation to Lab. No. 95-1-03817, Case No. ECU-1228, inclusive of all DNA tests and results, past and current submissions for contributor comparison, reports, data bank storage and current location of any/all biological evidence in this case. This request is governed by KRS 422.285(3). I am listed as a suspect in this matter.