22-ORD-278
December 21, 2022
In re: Leslie Haun/Luther Luckett Correctional Complex
Summary: The Luther Luckett Correctional Complex (the “Complex”)
did not violate the Open Records Act (“the Act”) when it denied a request
for JPay emails exchanged between private parties because they are not
public records, or when it could not provide a copy of an email that is not
in its custody or control.
Open Records Decision
Inmate Leslie Haun (“Appellant”) submitted a request to the Complex for a
copy of three emails he sent on specific dates and times. The Appellant claims he sent
one email to “the Education Department” and the other two emails he sent to a
specific person. In a timely response, the Complex denied the Appellant’s request
because the requested emails are maintained by an outside vendor, and thus, are not
“public records” under KRS 61.870(2).1 This appeal followed.
On appeal, the Complex reiterates that two of the requested emails are not
public records because the specific person to whom the Appellant sent them is a
private individual. This Office has previously found that JPay emails and their
attachments exchanged between private parties are not “public records” under
KRS 61.870(2). See, e.g., 22-ORD-111; 22-ORD-021; 20-ORD-109. Only emails sent to
or from employees of the correctional facility using the JPay system are “public
records,” because such records would have been “prepared by” or “in the possession
of” the correctional facility. See KRS 61.870(2). Additionally, JPay emails that have
1
The Complex also stated that “JPay emails are only available to an inmate who has access to the
[JPay] kiosks” and “an inmate in segregation cannot inspect the record through a kiosk.”been seized and are being “used” by a correctional facility for some official purpose
are “public records.” Id.; see also 22-ORD-021; 21-ORD-124.
Here, the Complex claims that two of the requested JPay emails are not public
records, and the Appellant does not provide any proof that the specific person to whom
he sent the emails is a Complex employee or that the emails are being used by the
Complex for some official purpose.2 Consequently, there is nothing in the record to
indicate that the requested pictures are “prepared, owned, used, in the possession of
or retained by a public agency” within the meaning of KRS 61.870(2). Accordingly,
the Complex did not violate the Act when it denied the Appellant’s request for these
two emails because they are not “public records.”3
The Complex also denied the Appellant’s request for the email he sent to the
“Education Department.” The Complex now explains that this record does not exist.
The Complex explains that the inmate JPay email system only permits inmates to
send emails to recipients from a “predefined list of contacts.” The Complex further
explains that the “Education Department” is not on the Appellant’s predefined list of
contacts on his JPay account. The Complex invites the Appellant to resubmit his
request if he can determine “more precisely what agency he is referring to” and that
“if the agency is a state agency and if the record is in [its] possession, then [it] will
produce it.”
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 or should 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 made a prima facie case. The Appellant merely
requested a copy of an email he claims to have sent to “the Education Department,”
but the Complex asserts that no email could have been sent to the “Education
2
The Appellant does claim the Complex has previously granted similar requests. However, the
Complex explains that these requests were for “logs,” not emails which, unlike the current request,
were in the Complex’s possession and responsive to that request.
3
Because these two emails are not “public records,” it is unnecessary to consider the Complex’s
alternative argument that the requested pictures are “[c]ommunications of a purely personal nature
unrelated to any governmental function,” and therefore exempt from inspection under
KRS 61.878(1)(r).Department” from the Appellant’s JPay account. Moreover, if the Appellant sent an
email to the Kentucky Department of Education, then perhaps that public agency
may have a copy of the requested email. But a public agency “is responsible only for
those records within its own custody or control.” City of Ft. Thomas v. Cincinnati
Enquirer, 406 S.W.3d 842, 856 (Ky. 2013) (citing Kissinger v. Reporters Committee for
Freedom of the Press, 445 U.S. 136 (1980)). The Appellant provides no evidence the
Complex should possess a copy of the email he sent to a different public agency. Thus,
the Complex did not violate the Act when it could not provide 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 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
#469
Distributed to:
Leslie Haun, #205731
Jonathan Gifford