24-ORD-211
September 27, 2024
In re: Buster Chandler/Department of Public Advocacy
Summary: The Department of Public Advocacy (the “Department”) did
not violate the Open Records Act (“the Act”) when it did not respond to
a request it claims it did not receive. The Department also did not violate
the Act when it did not produce records exempt under KRS 61.878(1)(p).
Open Records Decision
Inmate Buster Chandler (“Appellant”) claims that on July 1, 2024, he
submitted a request to the Department for a copy of his case file from a specific
Fayette County criminal case.1 Having received no response from the Department by
August 27, 2024, the Appellant initiated this appeal.
On appeal, the Department claims it never received the Appellant’s request. If
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 Department
claims it did not receive the Appellant’s request until this appeal was initiated.2 The
Office cannot resolve factual disputes, such as whether an agency actually received a
request to inspect records. See, e.g., 23-ORD-062; 22-ORD-024; 21-ORD-233; 21-ORD-
1
The original records request the Appellant provided to the Office in this appeal is undated.
2
As proof, the Department provides an affidavit signed by a legal secretary at its branch location to
which the Appellant allegedly sent his request. The affidavit states the legal secretary did not receive
the records request the Appellant provided to the Office as part of this appeal. The Department also
claims that, once it received the Appellant’s request attached to the notice of appeal, it issued a timely
response. As proof, the Department provides a copy of its September 6, 2024, response to the
Appellant’s request.163. Thus, the Office cannot find that the Department violated the Act when it did
not respond to a request that it claims it did not receive.
The Department also states that the Appellant’s “case file” is exempt under
KRS 61.878(1)(p). That paragraph exempts from disclosure “[c]lient and case files
maintained by the Department of Public Advocacy.” KRS 61.878(1)(p). The records
requested by the Appellant are exempt under the Act.3 Accordingly, the Department
did
not
violate
the
Act
when
it
did
not
produce
records
exempt
under KRS 61.878(1)(p).
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/ Matthew Ray
Matthew Ray
Assistant Attorney General
#372
Distributed to:
Buster Chandler #107034
Melanie Lowe
Marcel Radomile
3
Although the Act exempts the Appellant’s own case file, there are other authorities that control a
client's right of access to his own case file from his attorney. See, e.g., SCR 3.130(1.16(d)). However,
the Office’s authority is to determine whether an agency has complied with the Act, KRS 61.880(2),
not whether it complied with other statutes or rules, see, e.g., 22-ORD-235 n.3