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Opinion

Opinion By: Daniel Cameron, Attorney General; Marc Manley, Assistant Attorney General

Open Records Decision

Darryn B. Sharber ("Appellant") claims that on September 2, 2020, he requested from the Department a copy of the negatives of x-rays taken of him in 2016. After receiving no response from the Department, Appellant initiated this appeal. The Department claims that the first time it received Appellant's September 2 request was when this Office issued a notice of appeal in this matter. On appeal, the Department provided Appellant with a copy of a radiological report, but, according to the Department, it does not possess the requested x-rays. Those x-rays, the Department claims, are in the custody and control of MobileX, the private medical services provider that performed the x-rays.

An agency's obligations under the Act arise only after it receives a request to inspect records. KRS 61.880(1); KRS 197.025(7) (granting correctional facilities five days to respond after receiving the request). Here, it is disputed whether the Department received Appellant's initial request. This Office has historically declined to resolve such factual disputes. See, e.g. , 20-ORD-134; 18-ORD-056; OAG 89-81. This Office does so again here.

On appeal, the Department explains that a private medical services provider performed the x-rays sought, and that the Department does not retain copies of inmate x-rays. Once an agency affirmatively states that it has no responsive records, the burden then shifts to the requester to present a prima facie case that the requested records should exist in the agency's possession. See

Bowling v. Lexington-Fayette Urban County Government , 172 S.W.3d 333, 341 (Ky. 2005). Appellant has made no prima facie showing that a copy of his x-rays should exist in the possession of the Department. Accordingly, the Department did not violate the Act.

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 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.

LLM Summary
The decision addresses an appeal by Darryn B. Sharber regarding a request for x-ray negatives taken in 2016. The Department claimed it never received the initial request until the notice of appeal was issued and stated that it does not possess the x-rays as they are held by a private medical provider. The Attorney General's office declined to resolve the factual dispute about the receipt of the request, consistent with previous decisions, and found that the Department did not violate the Open Records Act as it does not possess the requested records.
Disclaimer:
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Requested By:
Darryn B. Sharber
Agency:
Louisville Metro Department of Corrections
Type:
Open Records Decision
Lexis Citation:
2020 KY. AG LEXIS 496
Forward Citations:
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