22-ORD-224
October 20, 2022
In re: Carlos Harris/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (the
“Complex”) violated the Open Records Act (“the Act”) when it failed to
respond fully to a request within five business days of receiving it.
However, the Complex did not violate the Act when it denied a request
for a record that does not exist within its possession. An agency is not
required to create a record to satisfy a request under the Act.
Open Records Decision
On September 21, 2022, inmate Carlos Harris (“Appellant”) submitted a
request to the Complex for a “[r]eport from video footage” of a specific date and time
“where [the Appellant] had complication[s] standing up due to lower back issues.”
The Complex responded the next day, cited KRS 61.878(1)(l) and KRS 197.025(1),
and denied “a copy of the camera footage” because the “[r]elease of security camera
video for an adult correctional institution is a security threat.” This appeal followed.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain why.
KRS 61.880(1).1 If the agency denies all or any portion of the request, it must cite the
specific exception authorizing nondisclosure of the requested records, and briefly
explain how the exception applies to the record withheld.
1
Similarly, under KRS 197.025(7), a correctional facility must respond to an inmate's request to
inspect public records within five business days of receipt of the requestHere, the Complex issued a response within five business days but it did not
address the Appellant’s actual request. The Complex denied a request for “security
camera video,” but the Appellant requested a “report” related to the video footage, not
the video itself. On appeal, the Complex admits it failed to respond to the Appellant’s
actual request because it “misread” the request. Accordingly, the Complex violated
the Act when it did not issue a response within five business days that granted or
denied the Appellant’s actual request.
Having read the Appellant’s request again, the Complex now claims on appeal
that it searched its “offender management system for a report about security video
involving [the Appellant] for that date and no report was located.” Furthermore, the
Complex claims that the requested “report about specific video footage is not a record
that is regularly made at the institution.”
Once a public agency states affirmatively that it does not possess responsive
records, the burden shifts to the requester to present a prima facie case that
requested records do exist in the possession of the public agency. See Bowling v.
Lexington-Fayette Urb. Cnty. Gov., 172 S.W.3d 333, 341 (Ky. 2005). If the requester
is able to make a prima facie case that the records do or should exist, then the public
agency “may also be called upon to prove that its search was adequate.” City of Fort
Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling,
172 S.W.3d at 341).
Here, the Appellant does not attempt to make a prima facie case that the record
he seeks exists within the Complex’s possession. Instead, the Appellant claims in a
supplemental response that “there is no statute, provision, or rule which prohibit the
preparing of a report from video footage[.]” However, the absence of a statute or
regulation prohibiting the creation of a record does not mean an agency must create
such a record. To the extent the Appellant implies that the Complex should create
such a report in response to his request, he is incorrect. An agency is not required to
create a record to satisfy a request under the Act. See Dept. of Revenue v. Eifler, 436
S.W.3d 530, 534 (Ky. App. 2013); see also18-ORD-184, 18-ORD-021, 17-ORD-089, 12-
ORD-026, 11-ORD-091, 10-ORD-187. Thus, the Complex did not violate the Act when
it denied a request for a record that does not exist within its possession.
A party aggrieved by this decision may appeal it by initiating 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 inany subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#369
Distributed to:
Carlos Harris, #143261
Amy V. Barker
Sara M. Pittman
Ann Smith
Shawn Bailey