23-ORD-221
August 17, 2023
In re: Carlos Harris/Kentucky Finance and Administration Cabinet
Summary: The Kentucky Finance and Administration Cabinet
(“Cabinet”) did not violate the Open Records Act (“the Act”) when it did
not respond to a request it claims it did not receive. The Cabinet also did
not violate the Act when it did not provide records that do not exist.
Open Records Decision
On July 3, 2023, inmate Carlos Harris (“Appellant”) submitted a request to the
Cabinet to inspect records related to payments made to an expert witness who
testified at the Appellant’s criminal trial in 1999. Having received no response to his
request by July 17, 2023, the Appellant initiated this appeal.
On appeal, the Cabinet claims to have never received the Appellant’s request.1
Under the Act, a public agency “shall determine within five (5) [business] days
. . . after the receipt of any such request whether to comply with the request and shall
notify in writing the person making the request, within the five (5) day period, of its
decision.” KRS 61.880(1) (emphasis added). Here, the Cabinet claims it did not
receive the Appellant’s request until this appeal was initiated. The Office cannot
resolve factual disputes, such as whether a public agency actually received a request.
See, e.g., 23-ORD-071; 23-ORD-005; 22-ORD-216; 22-ORD-148; 22-ORD-125; 22-
ORD-100; 22-ORD-051; 21-ORD-163. Thus, the Office cannot find the Cabinet
violated the Act when it did not respond to a request that it claims it did not receive.
1
Specifically, the Cabinet stated the Appellant sent his request to an address at which the Cabinet
is no longer located. The Cabinet also stated the correct mailing address is displayed on its website.
See KRS 61.876(2)(b) (requiring that public agencies display their mailing address on their websites).The Cabinet also states it possesses no records responsive to the Appellant’s
request. 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 Appellant has not made a prima facie case that the Cabinet possesses
records responsive to his request. Therefore, the Cabinet did not violate the Act when
it did not provide the requested records.
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
#321
Distributed to:
Carlos Harris #143261
Traci G. Walker
Holly McCoy-Johnson
Brian C. Thomas