October 16, 1996

In re: John E. Reneer/Eastern Kentucky Correctional Complex

Open Records Decision

This matter comes to the Attorney General on appeal from the actions of the Eastern Kentucky Correctional Complex (hereafter, “EKCC”) regarding Mr. John E. Reneer's June 26, 1996 request to inspect:

. . . the records which reflect that Warden O'Dea or his designee, or any other staff member, has reported the theft of supplies, tools, equipment, or any other item from the vocational education shops, whether reported to federal authorities in the case of the involvement of federal funds, or in the case of state authorities if state funds were involved. This request is made regarding thefts occurring during the period between 1994 - 1996.

In his letter of appeal, Mr. Reneer states that as of July 7, 1996 he had not received a response to his request. On that date, he sent a letter to Ms. Michelle Nickell, Open Records Coordinator, EKCC, advising her that he had yet to receive a response to his request.

By letter dated July 8, 1996, Ms. Nickell acknowledged receipt of his letter and informed him that his request had been forwarded to Mr. John Barnes, Academic Principal, EKCC. She advised him that he needed to contact Mr. Barnes regarding the response, as he was the Official Custodian of the records he had requested.

Mr. Reneer further states in his letter of appeal that on July 18, 1996, Mr. Barnes verbally told him that he was not going to respond in writing because no such reports had been made.

On September 5, 1996, Mr. Reneer submitted another open records request to Ms. Nickell, requesting to inspect:

1. One copy of the log or other record which reflects whether or not any written response was ever made to my Open Records Request dated June 26, 1996, in which I sought to inspect the records regarding theft reports made pertaining to the theft of items from the vocational shops (copy attached for your convenience, with copies of letters seeking such response). 2. A copy of any record reflecting the date and content of any written response made, if any such record exists.

On September 10, 1996, Ms. Nickell responded to Mr. Reneer's September 5 request by indicating that no response was ever received from Academic Principal John Barnes. Along with her response, Ms. Nickell attached a copy of the Open Records Log Book entry that pertained to Mr. Reneer's June 26 request, which evidenced that no response had been made.

On September 19, 1996, this office notified EKCC that Mr. Reneer had initiated an open records appeal in this matter. On that date, this office sent a “Notification of Receipt of Open Records Appeal” and enclosed a copy of Mr. Reneer's letter of appeal. The Notification states in part: “Pursuant to 40 KAR 1:030, Section 2, you may respond to this appeal, but the Attorney General shall not agree to withhold action beyond the time limit imposed by KRS 61.880(2).”

EKCC did not provide this office with a response to Mr. Reneer's letter of appeal or otherwise refute the facts therein. We therefore assume that the letter of appeal sets forth an accurate statement of the facts.

We are asked to determine whether the response of EKCC was in violation of the Open Records Act. For the reasons which follow, we conclude that the failure of Mr. Barnes, the Official Custodian of the requested records, to respond to Mr. Reneer's open records request in writing was a violation of the Act.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, 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 three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

To the extent that EKCC failed to respond in writing, and within three business days, to Mr. Reneer's requests, its actions were procedurally deficient and in violation of the requirements of KRS 61.880(1). Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125. We urge EKCC to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.

Accordingly, EKCC is directed to promptly respond to Mr. Reneer's requests in writing and promptly release the records or if the request is denied, in whole or in part, the response should include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. KRS 61.880(2).

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

John E. Reneer #26055

Kentucky State Penitentiary

3001 W. Highway 146

LaGrange KY 40032

Michelle Nickell

Open Records Coordinator

Offender Records

Eastern Kentucky Correctional Complex

P. O. Box 636

West Liberty, Kentucky 41472