23-ORD-069
March 27, 2023
In re: Deon’tae Williams/Kentucky State Penitentiary
Summary: The Kentucky State Penitentiary (“the Penitentiary”) 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 Deon’tae Williams (“Appellant”) submitted a request to the
Penitentiary to inspect letters he sent to the warden and the warden’s responses
related to two specified grievances and associated appeals. The Penitentiary stated
that no responsive records exist. This appeal followed.1
On appeal, the Penitentiary states, “the records do not 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, to make a prima facie case the requested records exist, the Appellant
provides a copy of a previous request he submitted to the Penitentiary asking to
inspect these letters, and the Penitentiary’s response to the request stating that
responsive records existed but the request was denied because the Appellant lacked
1
The Appellant also requested letters sent to three specified individuals on September 25, 2022.
The Penitentiary provided all responsive records to this portion of the request. The Appellant objects
only to the denial of his request for his letters and the warden’s responses related to the specified
grievances.sufficient funds to pay the copying fee. However, on appeal, the Penitentiary explains
that it “mistakenly thought [the Appellant] was requesting copies of the grievances
themselves” rather than the letters the Appellant sent to the warden regarding his
appeal of those grievances. Moreover, the Penitentiary explains that it searched the
offices of the warden and the grievance coordinators, but could not locate any letters
from the Appellant related to the three grievances he identified. Thus, even if the
Appellant had established a prima facie case that responsive records exist, the
Penitentiary has explained the adequacy of its search. Therefore, the Penitentiary
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 emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#094
Distributed to:
Deon’tae Williams #292041
Amy V. Barker
Lydia C. Kendrick
Ann Smith
Jonathan Gifford