NOT TO BE PUBLISHED

In re: Kenneth Sewell/Kentucky Parole Board

This is an appeal from the actions of the Kentucky Parole Board relative to an open records request submitted by Kenneth Sewell, an inmate at Northpoint Training Center, on June 24, 1997. The question presented in the appeal is whether the Board violated the Open Records Act in its handling of Mr. Sewell's request. For the reasons which follow, we find that the Board violated KRS 61.880(1) in failing to respond to the request.

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.

The Parole Board violated the Open Records Act by failing to respond to Mr. Sewell's request in writing and within three business days. On July 9, 1997, this office sent the Board a "Notification to Agency of Receipt of Open Records Appeal." The Board did not respond to this notification or otherwise attempt to explain its position relative to Mr. Sewell's request. We are therefore aware of no circumstances mitigating this violation.

Mr. Sewell requested copies of the written and taped record of the Board's vote to send his case back to the Board and any correspondence advising him of this decision. He notes that such records would appear to be required by KRS 439.330(4). That statute provides:

The board shall keep a record of its acts, an electronic record of its meetings, a written record of the votes of the individual members, and the reasons for denying parole to inmates. These records shall be public records in accordance with KRS 61.870 to 61.884. The board shall notify each institution of its decisions relating to the persons who are or have been confined therein, and shall submit to the Governor a report with statistical and other data of its work at the close of each fiscal year.

If records exist which satisfy Mr. Sewell's request, they would appear to fall within the parameters of the mandatory disclosure provision of this statute and should be released to Mr. Sewell immediately. If no such records exist, the Parole Board is obligated to affirmatively so state. OAG 91-101 (copy enclosed).

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 toKRS 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

Amye L. Bensenhaver

Assistant Attorney General

#749

Enclosure

Distributed to:

Kenneth Sewell #123264

Northpoint Training Center

Box 479 Dorm 2

Burgin KY 40310

Linda Frank

Kentucky State Parole Board

5^th Floor

State Office Building

Frankfort KY 40601