22-ORD-256
December 5, 2022
In re: Tami Bauer/Kentucky State Penitentiary
Summary: The Kentucky State Penitentiary (“the Penitentiary”) did
not violate the Open Records Act (“the Act”) when it did not provide
records that do not exist.
Open Records Decision
On September 19, 2022, Tami Bauer (“Appellant”) requested the Penitentiary
provide the “messages” from an employee’s state-issued cell phone. In a timely
response, the Penitentiary advised the Appellant it needed additional time to retrieve
the requested records because the phone was “no longer issued to” the employee. The
Penitentiary stated it would issue a final response by October 28, 2022. On October
20, 2022, the Penitentiary stated that the requested records did not exist, as it was
unable to locate them after a “reasonable search.” This appeal followed.
Once a public agency states affirmatively that requested records do not exist,
the burden shifts to the requester to present a prima facie case that requested records
do or should exist in the agency’s possession. See Bowling v. Lexington-Fayette Urban
Cnty. Gov’t., 172 S.W.3d 333, 341 (Ky. 2005). Here, the Appellant has not attempted
to present a prima facie case that the requested messages exist. Furthermore, on
appeal, the Penitentiary asserts the cell phone in question has been assigned to
another employee and there were no messages on the phone when the previous
employee returned it. Accordingly, the Penitentiary 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 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 thataction 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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#413
Distribution:
Ms. Tami Bauer
Amy V. Barker, Esq.
Ms. Sara M. Pittman
Ms. Ann Smith