23-ORD-021
January 31, 2023
In re: Jeff Carpenter/Luther Luckett Correctional Complex
Summary: The Luther Luckett Correctional Complex (“the Complex”)
did not violate the Open Records Act (“the Act”) when it did not provide
records that do not exist within its possession.
Open Records Decision
Jeff Carpenter (“Appellant”) made a request to the Complex to inspect records
related to him being moved to a new dormitory, or documenting “accusations made
against” him. In a timely response, the Complex denied the request because no
responsive records exist. This appeal followed.
On appeal, the Complex reaffirms that no responsive records exist. 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 established a prima facie case that responsive
records exist. Rather, he merely asserts that “[a]ll moves are generated by
administration and memos sent [sic] to the dorms to move inmates.” Even if the
Appellant’s mere assertion were sufficient to establish a prima facie case that the
requested record should exist, the Complex explained in its original response that the
record “was not created.” Whether the Complex was required to create a record
documenting the Appellant’s move is separate from whether the record was in fact
created. If a record should exist but does not, an agency may be required to explainwhy the record does not exist. See Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App.
2011). The Complex explained in its original response that the requested record does
not exist because it was never created. Therefore, the Office cannot find that the
Complex violated the Act when it did not provide records that do not exist.
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
#492
Distributed to:
Jeff Carpenter #095017
Amy Barker
Lydia Kendrick
Ann Smith