23-ORD-105
May 8, 2023
In re: Glenn Odom/Kentucky State Penitentiary
Summary: The Kentucky State Penitentiary (the “Penitentiary”) did
not violate the Open Records Act (“the Act”) when it issued a timely
response to a request to inspect records. This Office cannot resolve the
factual dispute regarding whether the Penitentiary received a third
request. A requester cannot perfect an appeal to this Office claiming an
agency failed to respond to a request until the sixth business day after
sending the request.
Open Records Decision
On February 13, 2023, inmate Glenn Odom (“Appellant”) submitted the first
of three requests for records to the Penitentiary. The first request sought “the actual
e-mail [or] FAX” that was used to transmit a specific affidavit from a deputy warden
to the Penitentiary’s attorney. The second request, dated February 21, 2023, sought
“to inspect [the Appellant’s] mental health file.” The third request, which was
undated, sought “proof of the date that [the Appellant] last talked to I.A. and what it
was about.” On February 21, 2023, he initiated this appeal, claiming he did not
receive a response to any of his requests.
Under the Act, a public agency has five business days from receipt of a request
to inspect records to fulfill it, or deny it and explain why. KRS 61.880(1);
KRS 197.025(7). The date a public agency receives a request to inspect records does
not count towards the five-business-day period. KRS 446.030(1) (“In computing any
period of time prescribed or allowed by . . . any applicable statute . . . the day of the
act, event or default after which the designated period of time begins to run is not to
be included”); see also 22-ORD-203. If a person seeks this Office’s review of a publicagency’s denial of a request to inspect records, he must provide the Office with a copy
of both his request and the public agency’s response to it. KRS 61.880(2)(a). If,
however, a requester is challenging the public agency’s failure to issue a timely
response, he need only provide the Office a copy of his request and state that he has
not received a response. Id. Of course, a person cannot claim that a public agency
failed to timely respond to a request if a minimum of six business days have not
elapsed since the date the request was sent, because if the request was received on
the day it was sent, the public agency’s response would be due five business days
thereafter. In other words, when a person seeks this Office’s review to allege a public
agency’s alleged failure to respond to a request that is dated less than six business
days from the date of the appeal, his appeal is premature, unperfected, and will be
summarily dismissed. KRS 61.880(2)(a); see also 20-ORD-175.
Here, the Appellant initiated his appeal on February 21, 2023. His request for
his mental health records was dated the same date. Thus, the Appellant’s claim that
the Penitentiary failed to timely respond to this request is premature, when he did
not even allow one day for the Penitentiary to respond. Accordingly, this part of his
appeal is dismissed.
The Penitentiary also provides proof it received on February 23, 2023, the
Appellant’s first request, dated February 13, 2023. It timely responded the same day
it received that request, and therefore, did not violate the Act.
Finally, the Appellant provides an undated request, in which he sought “proof
of the date that [he] last talked to I.A. and what it was about.” On appeal, the
Penitentiary provides proof it timely responded to a similar request, in which the
Appellant sought “proof which shows the last time [he] ever talked to I.A.” The
Penitentiary denied that similar request because no responsive records exist. Thus,
the request the Appellant submits on appeal is duplicative of an earlier request the
Penitentiary had denied. It is unclear, however, if the Penitentiary received the
undated request submitted with this appeal and failed to respond, or if the Appellant
has brought that undated request to this Office prematurely. The Office need not
resolve that factual dispute, however, because the Penitentiary has already once
denied the Appellant’s request for these records because they do not exist, and the
Appellant has not made a prima facie case that the records do or should exist. See
Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005).
Accordingly, the Office cannot find that the Penitentiary violated the Act.A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#095
Distributed to:
Glenn Odom #219489
Amy V. Barker
Lydia C. Kendrick
Ann Smith
Mark F. Bizzell