23-ORD-220
August 16, 2023
In re: Marvin Pennington/Eastern Kentucky Correctional Complex
Summary: The Office is unable to find that the Eastern Kentucky
Correctional Complex (the “Complex”) violated the Open Records Act
(“the Act”) because the Office cannot resolve the factual dispute between
the parties.
Open Records Decision
On June 13, 2023, inmate Marvin Pennington (“Appellant”) submitted three
requests to the Complex.1 On July 17, 2023, the Appellant initiated this appeal
claiming he did not receive any response from the Complex.
When an agency receives a request under the Act, it “shall determine within
five (5) [business] days . . . after the receipt of any such request whether to comply
with the request and shall notify in writing the person making the request, within
the five (5) day period, of its decision.” KRS 61.880(1) (emphasis added). Here, the
Appellant submitted three requests to the Complex on June 13, and claims he did not
receive a response to any of them as of July 17. In contrast, the Complex states it
received the Appellant’s three requests on June 20, 2023, and issued its responses to
those requests on June 22 and 23. As proof, the Complex provides the three requests
it received from the Appellant, which are stamped received on June 20, and its
responses to those requests, two of which are dated June 22, and one of which is dated
1
The Appellant’s first request sought a copy of a specific grievance form he filed, along with any
related findings issued after October 7, 2022. The Appellant’s second request sought “a copy of the
Inmate grievance committee scheduling form with [his] name on it” from October 10, 24, and 31, 2022.
The Appellant’s third request sought “a copy of the ‘Dorm 5-RHU-Inmate request to see a grievance
Aide’ from (10/12/22) till (11/1/22) with [his] name on it.”June 23.2 The Office has previously found that it is unable to resolve factual disputes
between a requester and a public agency, such as whether a requester received an
agency’s response to his request. See, e.g., 21-ORD-233. Thus, here, the Office cannot
resolve the factual dispute between the parties or find that the Complex’s responses
were untimely in violation of the Act.
A party aggrieved by this decision may appeal it by initiating an 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
#323
Distributed to:
Marvin Pennington #119935
Amy V. Barker
Lydia C. Kendrick
Ann Smith
2
Under KRS 197.025(3), “all persons confined in a penal facility shall challenge any denial of an
open record [request] with the Attorney General by mailing or otherwise sending the appropriate
documents to the Attorney General within twenty (20) days of the denial.” If the Appellant did receive
the Complex’s responses to his requests, his appeal would be time barred under KRS 197.025(3)
because he did not initiate this appeal until more than 20 days after the responses were issued.