22-ORD-238
November 7, 2022
In re: Ronald Williams/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (“the
Complex”) violated the Open Records Act (“the Act”) when it denied a
request because the record was in storage. The Complex did not violate
the Open Records Act when it did not provide a record that does not exist
in its possession.
Open Records Decision
Inmate Ronald Williams (“Appellant”) submitted a request to the Complex for
copies of a specific write-up and a cell search log dated July 6, 2022. The Complex
provided the write-up but denied the request for the cell search log because it was in
storage. 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). However, “[i]f the public record is . . . in storage . . . the official
custodian shall immediately notify the applicant and shall designate a place, time,
and date for inspection of the public records, not to exceed five (5) days from receipt
of the application, unless a detailed explanation of the cause is given for further delay
and the place, time, and earliest date on which the public record will be available for
inspection.” KRS 61.872(5) (emphasis added). Thus, KRS 61.872(5) does not allow an
agency to deny a request outright because the record is in storage. Rather,
KRS 61.872(5) requires the agency to retrieve the record from storage and notify the
requester of the date on which it will be available. Therefore, the Complex violated
the Act when it denied a request because the record was in storage.
On appeal, the Complex now states that the record no longer exists in its
possession. Once a public agency states affirmatively that a record does not exist, theburden 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 Complex implicitly acknowledges the record should exist, thus
establishing the Appellant’s prima facie case. According to the Complex, it has
“searched in places that the log was most likely to be stored and [has] not found it . . .
and it appears that the log has been inadvertently lost.” If a requester makes a prima
facie case that a record should exist but the agency is unable to locate the missing
record, the requester is entitled to an explanation why the record does not exist. See
Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011). Here, the Complex explained
that the record does not exist because it has been “inadvertently lost.” Thus, the
Complex did not violate the Act by not producing a record it does not possess.1
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
#387
Distributed to:
Ronald Williams #163955
Amy V. Barker
Sara M. Pittman
1
The loss of a record poses questions about records management, but the loss of a record does not
violate the Open Records Act. A courtesy copy of this decision will be sent the Kentucky Department
for Libraries and Archives so it may investigate how the Complex “inadvertently lost” a record.Ann Smith
Catherine Giles, KDLA