23-ORD-131
June 13, 2023
In re: Donald R. Phillips/Finance and Administration Cabinet
Summary: The Finance and Administration Cabinet (the “Cabinet”)
did not violate the Open Records Act (“the Act”) when it denied a request
for records that it does not possess.
Open Records Decision
On April 17, 2023, inmate Donald R. Phillips (“Appellant”) submitted a request
to the Cabinet for a copy of the “[c]ontract entered into between Union Supply Direct,
and the Kentucky Centralized Inmate Commissary Board” (the “Board”) “to provide
inmate canteen operations for the Kentucky Dep’t of Corrections.” On April 28, 2023,
the Cabinet denied the Appellant’s request because it does not possess any responsive
records.1 This appeal followed.
On appeal, the Cabinet states again that it “conducted a search of its records
for any contracts between any agency of the Commonwealth and Union Supply
Direct.” The Cabinet again states that it 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). If the
requester establishes a prima facie case that records do or should exist in the agency’s
1
The Cabinet states it received the Appellant’s request on April 21, 2023, and responded to it on
April 28, 2023. Thus, the Cabinet timely issued its response within five business days of receiving the
request. KRS 61.880(1).custody or control, “then the agency may also be called upon to prove that its search
was adequate.” City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3
(Ky. 2013) (citing Bowling, 172 S.W.3d at 341).
Here, in an attempt to make a prima facie case, the Appellant states the
Cabinet’s initial denial may “technically be true” because the Board “is not an agency
of the Commonwealth,” but “a contract must be on file with the Cabinet” because the
Board “has contracted with Union Supply Direct to provide services . . . for the
Kentucky Dep’t. of Corrections.” However, the Appellant does not provide any proof
to support his claim that such a contract exists. Therefore, the Appellant has not
made a prima facie case that the Cabinet does possess or should possess any records
responsive to his request.
Even if the Appellant had made a prima facie case, the Cabinet explains on
appeal it searched the “eMars contract management system,” which catalogues all
state contracts entered into under the Model Procurement Code, for any contract
between the Commonwealth and “Union Supply Direct” and could not locate any
contracts with an entity by that name. As a result, the Cabinet has explained the
adequacy of its search and did not violate the Act when it denied a request for records
that it does not possess.2
A party aggrieved by this decision may appeal it by initiating an 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.
2
The Office notes that, in 23-ORD-132, a third-party entity named “Union Supply Group” responded
to a request to inspect records on behalf of the Eastern Kentucky Correctional Complex. Thus, while
no evidence has been presented to the Office that an entity named “Union Supply Direct” exists, the
Appellant may have meant to ask for any contract between the Department of Corrections and “Union
Supply Group.” Nevertheless, he has not made a prima facie case that a contract between “Union
Supply Direct” and any state agency exists.Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#190
Distributed to:
Donald R. Phillips #149748
Traci G. Walker
Holly McCoy-Johnson
Brian C. Thomas