23-ORD-183
July 25, 2023
In re: Hal Cobb/Luther Luckett Correctional Complex
Summary: The Luther Luckett Correctional Complex (“the Complex”)
violated the Open Records Act (“the Act”) when it denied a request for
records without stating affirmatively whether the requested records
never existed or whether they once existed but were destroyed.
Open Records Decision
Inmate, Hal Cobb (“Appellant”) submitted a request to the Complex to inspect
“certificates and diplomas for all rehabilitation programs dating back to January
1995.”1 The Complex provided some responsive records, but stated, “Older documents
from the mid to late [sic] 1990s that were not present in [the Appellant’s] hard file
when it was converted over to electronic does [sic] not exist and cannot be provided.”
This appeal followed.
The Appellant argues the Complex should have provided responsive records
from 1995 to 2005, and that he and other inmates were assured all “program and
educational certifications [were] documented with hard copies in” each inmate’s
respective file. The Complex, however, merely reiterates its original response that, if
the records were not in the Appellant’s physical file, they would not have been
digitized.
1
In the same request, the Appellant also asked if the Complex still possessed copies of his birth
certificate and social security card. He also provides the Office with two additional requests he sent to
the Complex and its responses to those requests. However, the Appellant does not refer to any of those
other requests in his letter alleging how he believes the Complex violated the Act, and therefore, does
not appear to be appealing the Complex’s response to those requests.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). Here, the Complex has not stated affirmatively that the
requested records do not exist. Rather, the Complex states only that, if the record had
existed, it would have been digitized. The Complex does not explain what happened
to the inmates’ physical files after they were digitized, whether the physical records
were destroyed, were archived, or are still available at the Complex.
The Complex does not dispute the Appellant’s assertion that he attended
rehabilitation programs between 1995 and 2005, for which he received certificates of
completion. The Complex also does not dispute the Appellant’s assertion that he was
assured by the Complex that his completion of the rehabilitation programs was
documented in his physical file. Rather, the Complex states only that the record
would have been digitized if it had existed. Either the record never existed, or it
existed at one time and has since been destroyed. If the latter, then the Appellant is
entitled to a written explanation that the record was destroyed. Eplion v. Burchett,
354 S.W.3d 598, 603 (Ky. App. 2011). But here, the Complex’s non-answer casts doubt
on whether the record never existed or whether it no longer exists. The Complex’s
equivocation is not the kind of affirmative statement agencies are required to make
when they claim records do not exist. Accordingly, the Complex violated the Act.
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.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General#280
Distributed to:
Hal Mark Cobb #118558
Amy V. Barker
Lydia C. Kendrick
Ann Smith