23-ORD-030
February 8, 2023
In re: James Hightower/Northpoint Training Center
Summary: The Northpoint Training Center (“the Center”) 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
Inmate James Hightower (“Appellant”) submitted a request to the Center to
inspect “authorization of transfer” forms from several dates. The Center provided
transport orders from some but not all of the dates requested. This appeal followed.
On appeal, the Appellant alleges the Center failed to provide “both transfer
form[s] from between January 1, 2018 to March 31, 2018” and a transfer form from
November 1, 2021 to December 15, 2021. In response, the Center states it searched
for responsive transport orders and provided all it could locate. The Center claims no
transport orders from the remaining dates in question 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 merely asserts he was transferred to other correctional
facilities on the dates in question. Whether the Appellant was actually transferred
on those dates is a question of fact this Office cannot adjudicate. See, e.g., 22-ORD-
159 n.2. A requester’s mere assertion that records should exist does not establish a
prima facie case that requested records do, in fact, exist. See, e.g., 21-ORD-250; 21-ORD-174. Therefore, the Center did not violate the Act when it did not provide
records it does not possess.
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
#015
Distributed to:
James Hightower #172650
Amy V. Barker
Lydia Kendrick
Ann Smith