24-ORD-005
January 16, 2024
In re: Anthony Cain/Calloway County Jail
Summary: The Calloway County Jail (“Jail”) did not violate the Open
Records Act (“the Act”) when it did not provide records that do not exist.
Open Records Decision
Inmate Anthony Cain (“Appellant”) submitted a request to the Jail seeking a
copy of “Calloway’s contract with [the Department of Corrections] to house state
inmates” and “any contracts Calloway County has with [the Department of
Corrections] or [Kentucky] or [the] Federal Government concerning PREA
compliance.” In response, the Jail stated it does not have “knowledge of any contracts
between the Kentucky Department of Corrections and the [sic] Calloway County.”
This appeal followed.
On appeal, the Jail maintains that it does not possess contracts 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 attached the response of the Finance and
Administration Cabinet (“FAC”) to an identical request submitted to it by the
Appellant. In that response, FAC states it does not possess responsive records but
identifies the Calloway County Jail as an agency that “may be in possession of recordsresponsive to [the Appellant’s] request” (emphasis added).1 The FAC’s response does
not establish a prima facie case that the Jail currently possesses responsive
contracts.2 It merely identifies agencies that might possess such records, if they exist.
Therefore, the Jail 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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#548
Distributed to:
Anthony Cain
Kenneth Claud
K. Bryan Ernstberger
1
See KRS 61.872(4) (“If the person 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.”).
2
The Office notes it is the fiscal court of each county, not the Jailer, who is responsible for the fiscal
management of county jails. See KRS 441.025(1). A county jail may receive funding from the
Department of Corrections according to a specified formula, or in exchange for incarcerating prisoners
who violate state law. See KRS 441.206.