22-ORD-282
December 29, 2022
In re: James Harrison/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (the
“Complex”) violated the Open Records Act (“the Act”) when it invoked
KRS 61.872(5) to delay inspection of records without notifying the
requester of the earliest date on which the records would be available.
However, the Complex did not violate the Act when it denied requests
for records that do not exist.
Open Records Decision
On November 4, 2022, inmate James Harrison (“Appellant”) submitted to the
Complex a request to inspect records containing nine subparts related to various
events that have occurred since his incarceration, such as disciplinary events and
hearings at specific times, and correspondence exchanged between various
individuals.1 On November 8, 2022, the Complex invoked KRS 61.872(5) and stated
it needed “additional time” because some of the records were located in other
departments. On November 23, 2022, having received no further response from the
Complex, the Appellant initiated this appeal.
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). A public agency may also delay access to responsive records if such
records are “in active use, storage, or not otherwise available.” KRS 61.872(5). A
1
The Appellant’s request on November 4, 2022, combined three prior requests he made that were
denied because he did not have sufficient funds for the copying fees. The Office has previously found
that an agency does not violate the Act when it denies a request for copies of records where the inmate
requester’s account contains insufficient funds to cover reproduction charges. See, e.g., 08-ORD-096.public agency invoking KRS 61.872(5) to delay access to responsive records must
notify the requester of the earliest date on which the records will be available and
provide a detailed explanation for the cause of the delay. Id. Here, the Complex’s
response stated it needed “additional time,” which did not notify the Appellant of the
“earliest date on which the public record will be available for inspection” as required
under KRS 61.872(5). Accordingly, its initial response violated the Act.
After the appeal was initiated, the Complex provided the Appellant with 23
pages of responsive records.2 The Complex also states it is denying three subparts of
the request because no records responsive to those subparts exist.3 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 Complex states affirmatively that the records do not exist within its
possession because it was unable to locate them after a reasonable search.4 The
Appellant did not attempt to make a prima facie case that the Complex does or should
possess any records responsive to the requests it denied. As a result, the Complex is
not “called upon to prove that its search was adequate.” Id. Thus, the Complex did
not violate the Act when it denied a request for records that do 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
2
Issues related to the records that have been made available to the Appellant are now moot. 40
KAR 1:030 § 6 (“If the requested documents are made available to the complaining party after a
complaint is made, the Attorney General shall decline to issue a decision in the matter.”)
3
The three requests the Complex denied were: (1) Email sent via JPay on October 27, 2022; (2)
Letters sent by the Appellant to a specific complex employee between September 19 and September
29, 2022; and (3) Letters sent by the Appellant to another Complex employee between October 17 and
October 20, 2022, pertaining to a detention order.
4
The Complex suggests the Appellant “may want to ensure the dates for records [he is] requesting
are correct.” The Complex also suggests that, if the dates are correct, the records possibly were “not
created.”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
#451
Distributed to:
James Harrison, #095435
Jesse L. Robbins