23-ORD-033
February 14, 2023
In re: Uriah Pasha/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (“the
Complex”) did not violate the Open Records Act (“the Act”) when it did
not provide records that do not exist in its possession.
Open Records Decision
Inmate Uriah Pasha (“the Appellant”) submitted a request to the Complex to
inspect the “Parole Plan submitted for his October 12, 2020 Parole Hearing” and the
“Recording of his Parole Hearing.” The Complex denied the request and told the
Appellant that it did not have custody of the requested records. This appeal followed.
On appeal, the Complex says neither the Appellant’s “Parole Plan” nor a
“Recording of his Parole Hearing” exists in its possession. 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 the Complex
possesses the “Parole Plan” or “Recording of his Parole Hearing.” Therefore, the
Complex did not violate the Act when it did not provide records it does not possess.1
1
Although the Complex maintains on appeal that it does not possess the requested records, it has
now provided the Appellant an “order” it believes may be responsive to the request.Under KRS 61.872(4), if “the person to whom the application is directed does
not have custody or control of the public record requested, that person shall notify the
applicant and shall furnish the name and location of the official custodian of the
agency's public records.” In its initial response, the Complex told the Appellant to
submit his request to the Little Sandy Correctional Complex and provided the
facility’s address.2 Thus, the Complex did not violate the Act when it provided the
name and address of the agency it believed to be the custodian of the records.
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
#020
Distributed to:
Uriah Pasha #092028
Amy V. Barker
Lydia Kendrick
Ann Smith
2
After this appeal was initiated, the Complex informed the Appellant that the Kentucky Parole
Board is the custodian of the requested records and provided the Board’s mailing address.