22-ORD-242
November 7, 2022
In re: Carlos Harris/Eastern Kentucky Correctional Complex
Summary: The Office is unable to find that the Eastern Kentucky
Correctional Complex (the “Complex”) violated the Open Records Act
(“the Act”) when it failed to fully respond to a request and failed to state
the specific exception authorizing a denial because the request did not
precisely describe the records sought. 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 “staff members to view video footage from” March 5, 2022
and March 22, 2022 because it is critical to his “medical needs.” On September 26,
the Complex responded and denied the request “regarding the camera footage of the
incident that occurred on March 5, 2022” because it does “not have the ability to
review camera footage of an incident that occurred over 6 months ago.” This appeal
followed.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, and if it denies the request, to
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,
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.and briefly explain how the exception applies to the record withheld. Id. Here, the
Complex responded within five business days, but its response did not address the
part of the Appellant’s request related to video footage from the March 22, 2022
incident. The Complex’s response also did not cite the specific exception that
authorized it to withhold the records. Thus, it would seem that the Complex violated
the Act by not fully responding to the request. However, the Appellant’s request was
not sufficiently clear that he sought camera footage from March 22.
A request to inspect public records under the Act must describe those records
in a manner “adequate for a reasonable person to ascertain the nature and scope of
[the] request.” Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). If the
request is for copies of public records, it must “precisely describe[ ] the public records
which are readily available within the public agency.” KRS 61.872(3)(b). Here, the
Appellant’s request was for the Complex’s “staff members to view video footage from”
March 5, 2022 and March 22, 2022. Therefore, the request does not describe any
public records that the Appellant sought to review himself; instead, the request asked
the Complex to have its staff review the footage. See 22-ORD-054; 08-ORD-058. The
Act does not require the Complex to review video footage at the Appellant’s request.
On appeal, the Appellant clarifies that he seeks a report of the video footage,
not the video itself. The Complex, on appeal, denies the Appellant’s clarified request
because the Complex does not possess the requested report. Nor is the Complex
required, under the Act, to create such a record to fulfill the Appellant’s request.
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’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 does not attempt to make a prima facie case that the record
he seeks exists within the Complex’s possession. Kentucky Courts and the Office have
previously found that 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
also 18-ORD-184; 18-ORD-021; 17-ORD-089; 12-ORD-026; 11-ORD-091; 10-ORD-
187. In a recent opinion involving the same parties, this Office specifically found theComplex was not required by the Act to create a report related to video footage to
satisfy the Appellant’s request. See 22-ORD-224. So too here, the Complex did not
violate the Act when it denied a request for a record that does not exist within its
possession, and it is not required to create such a record to satisfy a request.
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 in
any 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
#384
Distributed to:
Carlos Harris, #143261
Amy V. Barker
Sara M. Pittman
Ann Smith