24-ORD-004

January 16, 2024

In re: Davon Burke/Kenton County Attorney’s Office

Summary: Because a person seeking the Attorney General’s review of
a denial of a request to inspect records must provide “a copy of the
written request and a copy of the written response denying inspection,”
KRS 61.880(2)(a), the Office lacks jurisdiction to review a public
agency’s denial where the written request provided is not the same one
to which the denial pertains. The Office cannot resolve a factual dispute
as to whether a public agency received a particular request.

Open Records Decision

Inmate Davon Burke (“Appellant”) claims he submitted a request for records
to the Kenton County Attorney’s Office (“the agency”), which was denied. The request
he has provided for the Office’s review is dated November 16, 2023, and contains four
subparts. The agency’s denial is dated November 17, 2023, and appears to be
responsive to an earlier request he submitted, which was undated. That request
sought a visitation video from February 16, 2023, and “any other visitation video.” In
response to this appeal, the agency asserts the Appellant did not include with his
appeal a copy of the undated request to which its November 17 denial pertains. The
agency further claims neither it “nor the records custodian for the fiscal court has
received” the November 16 request the Appellant provided with his appeal.
Accordingly, the agency argues this appeal should be dismissed.

Under KRS 61.880(2)(a), “[i]f 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.” If the written request
provided is not the same one to which the denial pertains, then the requester has
failed to comply with KRS 61.880(2)(a) and properly invoke the Office’s jurisdiction.
See 22-ORD-215 n.2. Furthermore, the Office is unable to resolve factual disputes
between a requester and a public agency, including whether the agency received a
particular request. See, e.g., 21-ORD-163. Accordingly, the appeal is dismissed.A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.

Russell Coleman

Attorney General

/s/ James M. Herrick

James M. Herrick

Assistant Attorney General

#547

Distributed to:

Davon Burke, #162305
Christopher S. Nordloh, Esq.

LLM Summary

In 24-ORD-004, the Attorney General's Office dismissed an appeal regarding a denied records request due to jurisdictional issues. The appellant failed to provide the specific request that was denied, instead providing a different request. The decision emphasizes the necessity of providing both the written request and the denial response to invoke the Office's jurisdiction and notes the Office's inability to resolve factual disputes about whether a request was received.

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