23-ORD-162
July 6, 2023
In re: Darnell Chivers/Whitley County Detention Center
Summary: The Whitley County Detention Center (“the Center”) did
not violate the Open Records Act (“the Act”) when it did not provide a
record that does not exist.
Open Records Decision
Inmate Darnell Chivers (“Appellant”) submitted to the Center a request for
video taken inside his cell on May 8, 2023, from 8:45am to 6:45pm.1 The Center denied
the request because it had already deleted the video. This appeal followed.
On appeal, the Center maintains that the requested footage has been deleted
and no longer exists. 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 makes 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 Center implicitly acknowledges the record should exist, thus
establishing the Appellant’s prima facie case. According to the Center, after receiving
1
The Appellant also requested “[a]ny and all reports concerning the taking of hair samples from
[the Appellant] on May 8, 2023.” The Center says it has provided all records responsive to this request
and the Appellant has not appealed that response. The Appellant also requested that the Center
preserve the requested video. Although the Act permits the inspection of public records, it does not
provide a requester the right to demand the preservation of public records. Rather, the preservation
of public records is governed by a public agency’s records retention schedule. See KRS 171.530;
KRS 171.680.the request, “too much time had passed, and the footage requested had already been
over-written and is not available.” If a requester makes a prima facie case that a
record should exist but the agency is unable to locate the missing record, the
requester is entitled to an explanation why the record does not exist. See Eplion v.
Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011). Here, the Center explained that the
footage does not exist because it has been “over-written.” Thus, the Center did not
violate the Act by not producing a record it does not possess.
A party aggrieved by this decision may appeal it by initiating an 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
#240
Distributed to:
Darnell Chivers #187615
Jason Wilson
Robert Hammons
Connie L. Haynes