24-ORD-043
February 20, 2024
In re: Ben Richard/Justice and Public Safety Cabinet
Summary: The Office lacks jurisdiction to consider the Cabinet’s denial
of a request to inspect records made under the Open Records Act (“the
Act”) because the inmate requester failed to appeal the denial within 20
days, as required by KRS 197.025(3).
Open Records Decision
Inmate Ben Richard (“Appellant”) has submitted two requests to the Cabinet
seeking a copy of the Cabinet’s “classification manual.” He submitted his first request
on November 17, 2023. On November 28, 2023, the Cabinet denied his request under
KRS 61.878(1)(l) and KRS 197.025(2) because the record does not contain a specific
reference to the Appellant. The Appellant submitted his second request, which is the
subject of this appeal, on January 2, 2024. On January 10, 2023, the Cabinet denied
this request for the same reasons it denied his earlier request. The Appellant then
attempted to initiate this appeal and seek the Office’s review of the Cabinet’s January
10, 2024, denial.
Although the Act does not, itself, require residents of the Commonwealth to
appeal an agency’s denial of a request to inspect records within a specific timeframe,
the General Assembly has established a deadline by which an inmate must seek
review of a request that has been denied. 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.” Because the General
Assembly has specifically limited the time in which an inmate may appeal the denial
of a request to inspect records, the Office has routinely held that an inmate cannot
circumvent the 20-day period to seek the Office’s review under KRS 197.025(3) bysubmitting a second request for the same record to the agency and obtaining the same
denial. See, e.g., 20-ORD-046; 18-ORD-015; 15-ORD-0027.
Here, the Cabinet provides proof it denied an identical request by the
Appellant for the requested policy on November 28, 2023, well more than 20 days
before the Appellant initiated this appeal. The Appellant cannot renew the 20-day
period to appeal the Cabinet’s denial by submitting a duplicative request and
obtaining a more recent, but nevertheless duplicative, denial. The Appellant’s appeal
is therefore dismissed as time barred under KRS 197.025(3).
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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#036
Distributed to:
Ben W. Richard, Jr. #199197
Michelle Harrison
Stephanie L. DeFrancesco
Ann Smith
Ed Baylous