23-ORD-332
December 14, 2023
In re: Elbert Long/Kentucky Parole Board
Summary: The Kentucky Parole Board (“Board”) did not violate the
Open Records Act (“the Act”) when it did not provide records that do not
exist.
Open Records Decision
Inmate Elbert Long (“Appellant”) submitted a request to the Board seeking a
copy of a transcript from his preliminary parole revocation hearing that occurred in
August 1988. In response, the Board stated it does not possess a transcript of the
Appellant’s hearing. This appeal followed.
On appeal, the Board maintains that it does not possess a transcript of the
Appellant’s hearing. 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 asserts the transcript exists because it allegedly was used
as evidence against him in his federal criminal case. But that assertion alone does
not establish a prima facie case that the Board currently possesses the transcript.1
1
The Board states that, after this appeal was initiated, it determined that a copy of the transcript
is saved in the Department of Correction’s Kentucky Offender Manager System (“KOMS”). The Board
further states that it is not the custodian of records kept in KOMS. Under KRS 61.872(4), if “the personTherefore, the Board did not violate the Act when it did not provide records it does
not possess.
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
#514
Distributed to:
Elbert Phillip Long #077478
Angela D. Tolley
Seth Fawns
to whom the application is directed does not have custody or control of the public record requested,
that person shall notify the applicant and shall furnish the name and location of the official custodian
of the agency's public records.” The Board has provided the Appellant with the name and address of
the custodian of KOMS records and the custodian of court records in the Western District of Kentucky.