Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issues presented in this appeal are whether Lee Adjustment Center ("LAC") violated the Open Records Act in failing to issue a written response to Michael Fugate's ("Appellant") March 25, 2019 request within five working days, as required by KRS 197.025(7), and improperly delaying Appellant's access to responsive records in violation of KRS 61.872(5). Due to a factual dispute concerning the actual delivery and receipt of Appellant's request for records, this office has not basis upon which to find that LAC violated the Act.
On April 25, 2019, Appellant submitted an open records appeal to this office, arguing that LAC had not issued a timely response to his March 25 request for records. Appellant attached LAC's April 9, 2019 response to his request in accordance with KRS 61.880(2)(a). 1 Appellant also argued that LAC violated the Act when it postponed his access to responsive records without providing, "[a]ny notification of a delay...accompanied by a detailed explanation of the cause and a statement of the earliest date, time, and place on which they will be available for inspection [.]"
Upon receiving notification of this appeal, G. Edward Henry, II responded on behalf of LAC in his capacity as legal counsel for CoreCivic, Inc., which owns and operates LAC. Mr. Henry argued that LAC did not receive Appellant's request for records until April 9, 2019. Mr. Henry stated that the response attached to the appeal is evidence that Appellant received all of the records responsive to his request on the date LAC received the request.
Pursuant to KRS 197.025(7), LAC had five calendar days, excepting Saturdays, Sundays and legal holidays, to respond to the request. This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning 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. As in the those decisions, the conflicting record on appeal here does not contain sufficient evidence concerning the actual delivery and receipt of Appellant's March 25, 2019, request for this office to conclusively resolve the related factual dispute.
Appellant's argument that LAC improperly delayed his access to responsive records alludes to a violation of KRS 61.872(5). 2 However, the record lacks any evidence that LAC improperly delayed Appellants' access to public records in violation of KRS 61.872(5). The record contains no basis to question the veracity of LAC's claim that it did not receive Appellant's request until April 9, 2019. As such, there is no evidence that LAC delayed Appellant's access to responsive records. In the absence of any irrefutable proof that LAC actually received Appellants' March 25 request prior to April 9, this office is unable to determine whether LAC violated the Act from a procedural standpoint. See 18-ORD-006; 19-ORD-068.
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 KRS 61.880(2)(a) states, in relevant 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. "
2 KRS 61.872(5) states: "If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. "
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