23-ORD-115
May 30, 2023
In re: Alastair Couch/Franklin County Commonwealth’s Attorney
Summary: This Office cannot find that the Franklin County
Commonwealth’s Attorney (the “Commonwealth’s Attorney”) violated
the Open Records Act (“the Act”) when he did not respond to a request
he did not receive.
Open Records Decision
Inmate Alastair Couch (“Appellant”) claims he submitted a request on March
22, 2023, to the Commonwealth’s Attorney for copies of all emails he sent or received
concerning the Appellant’s criminal case. On April 27, 2023, having received no
response from the Commonwealth’s Attorney, the Appellant initiated this appeal.
On appeal, the Commonwealth’s Attorney claims he did not receive the
Appellant’s request until he received notice of 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 it.1 KRS 61.880(1). However, here, the Commonwealth’s
Attorney claims he did not receive the Appellant’s request. Consequently, the
statutory period to respond to the request did not begin until the Commonwealth’s
Attorney received a copy of the request included with notice of this appeal. The Office
has routinely found it is unable to resolve factual disputes between a requester and
1
The Commonwealth’s Attorney explains that a special prosecutor was appointed and “prosecuted
the case in its entirety.” Accordingly, the Commonwealth’s Attorney claims he does not possess any
records responsive to the Appellant’s request. Once a public agency states affirmatively that it does
not possess any responsive records, the burden shifts to the requester to present a prima facie case
that the requested records do exist in the agency's custody or control. See Bowling v. Lexington–Fayette
Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). The Appellant has not attempted to make such a
prima facie case here.a public agency, such as whether an agency received a request to inspect records. See,
e.g., 23-ORD-092; 23-ORD-071; 23-ORD-005; 22-ORD-216; 22-ORD-148; 22-ORD-
125; 22-ORD-100; 22-ORD-051; 21-ORD-163. Therefore, this Office cannot find that
the Commonwealth’s Attorney violated the Act.
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
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
#167
Distributed to:
Alastair Couch #247390
Larry Cleveland