22-ORD-237
November 7, 2022
In re: Darnell Chivers/Grayson County Detention Center
Summary: The Grayson County Detention Center (“the Center”) did
not subvert the Open Records Act (“the Act”), within the meaning of
KRS 61.880(4), when it did not provide records that do not exist.
Open Records Decision
Inmate Darnell Chivers (“Appellant”) submitted a request to the Center for
copies of (1) “all body receipts . . . to remove him from federal to state custody,” (2)
related “writs of habeas corpus,” and (3) “any other documents concerning the change
of custody from federal to state” from February 25, 2019, to November 5, 2019. The
Center provided the requested records. This appeal followed.
Under KRS 61.880(4), “[i]f a person feels the intent of [the Act] is being
subverted by an agency short of denial of inspection, . . . the person may complain in
writing to the Attorney General.” Here, the Appellant claims the Center has
subverted the intent of the act by providing a “partial and fabricated record.”
In response, the Center denies fabricating any records and claims to have
provided the Appellant with all responsive records that exist in the Center’s
possession. Once a public agency states affirmatively that a record does not exist, the
burden shifts to the requester to present a prima facie case that the requested record
does exist. See Bowling v. Lexington-Fayette Urb. Cnty. Gov’t, 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 has not established a prima facie case that additional
responsive records exist. He states only that the Center was provided with a “big
stack of papers” once when he was transferred into the custody of another agency.
This bare claim does not establish a prima facie case that the requested records exist.
Therefore, the Center did not subvert the intent of the Act by not producing records
that do not exist.
The Appellant also alleges the Center provided “body receipts” for dates he was
not removed from custody. However, the Office cannot resolve factual disputes
between a requester and a public agency about the content of the records produced.
See, e.g., 22-ORD-148; 22-ORD-125; 22-ORD-100; 22-ORD-051; 21-ORD-163.
Consequently, this Office is unable to find that the Center subverted the intent of the
act within the meaning of KRS 61.880(4).
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 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#385
Distributed to:
Darnell Chivers #187615
Jason Woosley
Jeremy Logsdon