March 8, 1994
IN RE: Stephen W. Cessna/Kentucky State Police
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Stephen W. Cessna to the Kentucky State Police. Those records are not specifically identified, but apparently relate to an investigation of the death of Gary Shephard, Case Number 11-93-1643. The State Police denied Mr. Cessna's request on November 4, 1994. This appeal followed.
The entire text of Mr. Cessna's appeal is set forth below:
I have made an open records request to the Kentucky State Police involving the investigation of the death of Gary Shepherd, Case Number 11-93-1643.
On November 4, 1993, I received a letter wherein Diane Smith, Official Custodian of the Records, has denied my open records request. Pursuant to KRS 61.880, I am requesting the Attorney General to review the denial of the open records request and ascertain whether the Kentucky State Police is acting in conformity with the statutes.
Mr. Cessna did not identify the records which he believed the State Police had improperly withheld beyond this vague reference to "[records] involving the investigation of the death of Gary Shepherd . . . ." He did not attach a copy of his request or a copy of the denial issued by the State Police.
Accordingly, on January 26, 1994, this Office contacted Mr. Cessna by letter, advising him that to facilitate our review of the actions of the State Police, we would need a copy of his request and their denial. Citing KRS 61.880(2), we explained that we would be unable to resolve the appeal without this documentation. To date, we have received no response to our request.
KRS 61.880(2) provides, in part:
If 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.
(Emphasis added.) Thus, to perfect an appeal under the Open Records Act, a complaining party must provide the Attorney General with a copy of the written request and the written denial, if available. While this Office recognizes that the rules of procedure governing an open records appeal should be relaxed to permit the greatest possible access to this forum, and that a rule of substantial compliance should generally be applied, we have no alternative but to dismiss this appeal for failure to comply with KRS 61.880(2).
Nothing in the statutes precludes Mr. Cessna from submitting a new appeal relative to the denial of his request. We urge him, however, to carefully review KRS 61.880(2) in advance of filing that appeal. If he is unable to secure a copy of his original open records request and denial, he should attempt to reconstruct that request and denial, or at a minimum specifically identifying the records which he believes the State Police improperly withheld, and state the grounds for his objections.
Mr. Cessna may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Ms. Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601
Hon. Stephen W. Cessna
Scoville, Cessna, Crawford, Ecabert
Attorneys At Law
Main At Fifth Street
105 North Main Street
London, KY 40741