24-ORD-003
January 16, 2024
In re: Timothy D. Day/Kentucky Parole Board
Summary: The Office cannot find that the Kentucky Parole Board (“the
Board”) violated the Open Records Act (“the Act”) when it denied a
request for records that do not exist.
Open Records Decision
Inmate Timothy D. Day (“Appellant”) claims he submitted a request to the
Board on November 14, 2023, for a copy of the “Preliminary Parole Revocation
Hearing Tapes and Record” from January 1, 2022, and January 1, 2023. The
Appellant also requested “the Final Hearing Dates for August 4, 2022, and August 5,
2022.” The Appellant noted the recordings “were made on the Franklin Circuit Court
Arraignment Video Recording.” The Board denied his request because it does not
possess any responsive records.1 The Appellant then initiated this appeal, claiming
the Board should possess responsive records.
1
The request the Appellant provided with his appeal is dated November 14, 2023, but he dated his
appeal November 6, 2023. The Board’s response is also dated November 6, 2023, but indicates it
received his request that was dated November 14, 2023, on November 17, 2023. Presumably, the
November 6 date on both the Appellant’s appeal and the Board’s denial are erroneous. It is not clear
when the Board issued its response denying the Appellant’s request. The date of the Board’s denial is
important because, under KRS 197.025(3), “all persons confined in a penal facility shall challenge any
denial of an open record [request] with the Attorney General by mailing or otherwise sending the
appropriate documents to the Attorney General within twenty (20) days of the denial.” If the Board
issued its denial the same day it allegedly received the Appellant’s request, November 17, 2023, then
the Appellant’s appeal would be time-barred because he did not mail the appropriate documents to the
Office until December 8, 2023, or 21 days later, as reflected by the postmark of his appeal. See, e.g.,
19-ORD-176 (dismissing an inmate’s appeal as untimely based on the postmark of his appeal); 18-
ORD-233 (same). Ultimately, the Office cannot conclusively determine from this record that the
Appellant’s appeal is untimely, and therefore, is satisfied it has jurisdiction to proceed to the merits of
the Appellant’s appeal.Once a public agency states affirmatively that it does not possess responsive
records, the burden shifts to the requester to present a prima facie case that the
requested records do or should exist. 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, “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).
In an attempt to make a prima facie case that the Board possesses responsive
records, the Appellant merely claims that “Parole Hearing Records are recorded and
stored for eighteen (18) months.” Even if that were true,2 he provides no evidence
that records were created on the dates he specified in his request. Rather, he provides
on appeal two documents indicating his parole revocation hearing may have occurred,
but neither reflect that any such proceeding occurred on the dates he identified.3 The
Office has previously found that a requester’s bare assertion that records exist is not
enough to establish a prima facie case that the records actually exist. See, e.g., 23-
ORD-335; 22-ORD-040. And the Board has again affirmed on appeal that none of the
Appellant’s hearings were conducted “on the dates requested by him.” Accordingly,
the Office cannot find that the Board violated the Act when it denied a request for
records that do not exist.
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 Indeed, the Board’s retention schedule for public records does require such records to be retained
for 18 months. See Series 04480, 04540, Parole Board Retention Schedule, available at
https://kdla.ky.gov/records/RetentionSchedules/Documents/State%20Record…
Board.PDF (last accessed January 16, 2024).
3
One document is merely an order entered October 10, 2022, referring the “matter” to the Board
“for a final decision,” and the other is a notice scheduling a probable cause hearing on September 21,
2022, to determine whether to revoke the Appellant’s parole. Moreover, it is highly unlikely any
hearings occurred on January 1, 2022 or 2023, as that would have been the New Year Day holiday.Russell Coleman
Attorney General
/s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#546
Distributed to:
Timothy D. Day #137492
Angela D. Tolley