24-ORD-027
February 6, 2024
In re: Reginald Grider Jr./ Kentucky State Penitentiary
Summary: The Office cannot find that the Kentucky State
Penitentiary (“the Penitentiary”) violated the Open Records Act (“the
Act”) when it denied a request for records that do not exist. However,
the Penitentiary violated the Act when it denied a request for audio
recordings without citing an applicable exception.
Open Records Decision
Inmate Reginald Grider Jr. (“Appellant”) submitted a request to the
Penitentiary for copies of disciplinary reports and “appeals to the warden” for “all
disciplinary violations that are STG related that [sic] status has been finalized” and
copies of “each audio adjustment proceeding.” In a timely response, the Penitentiary
denied his request for disciplinary reports from November 30, 2022, to the present
because it had already provided him with those records in response to an earlier
request. The Penitentiary also denied the Appellant’s request for the audio recording
of disciplinary report “KSP-2023-0001330” because it “still has not been retrieved
from the recorder it is on as it is still being worked on by the IT” Department. Finally,
the Penitentiary denied the Appellant’s request for appeals “to the warden” because
no responsive records exist. This appeal followed.
On appeal, the Appellant admits he has received the disciplinary reports from
November 30, 2022, to the present, but claims he did not limit his request to that
period. He states he asked for all such reports related to “STG,”1 but not all of the
reports have been provided. He also challenges the Penitentiary’s denial of the audio
recordings and his “appeals.” However, he admits he submitted his appeals to “the
Central Office,” not the warden. In response, the Penitentiary claims to have provided
all responsive disciplinary reports and notes the Appellant now admits he did not
submit any “appeals” to the warden. The Penitentiary further states the audio
“recordings” will be made available to the Appellant “within two weeks” because it is
1
It is not clear from this record what the acronym “STG” means.currently “transferring [the] data.” The Penitentiary originally denied the request for
audio recordings because the audio had been “compromised” and the Penitentiary’s
IT staff were working to resolve the issue.
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). Similarly, once a public
agency claims to have provided all responsive records, the burden shifts to the
requester to make a prima facie case that additional records exist because, in essence,
the agency has stated no additional records exist. The Office, however, is unable to
resolve factual disputes between the parties about whether all responsive records
have been provided. See, e.g., 23-ORD-317; 19-ORD-083; 94-ORD-121. In other words,
in appeals involving claims that responsive records exist but have not been provided,
the Office can only decide whether an agency’s search was adequate. However, the
Office will only make such a determination after the requester has made a prima
facie case that the agency’s search was inadequate because a statute, regulation, or
other factual evidence supports the potential existence of responsive records that
have not been provided.
Here, the Appellant admits he did not submit an “appeal” to the warden.
Although he now claims that he seeks appeals he submitted to “the Central Office,”
he did not request those records originally. Moreover, the Appellant merely asserts
that additional disciplinary reports related to “STG” exist and have not been
provided. A requester’s mere assertion that records should exist does not establish a
prima facie case that they do. Accordingly, the Office cannot find that the
Penitentiary violated the Act when it provided all responsive disciplinary reports and
denied a request for “appeals to the warden” that do not exist.
However, the Penitentiary’s response denying access to the audio recordings
violated the Act. Under KRS 61.880(1), if a public agency denies a request for records
that do exist then it must cite an exemption in support of its denial and explain how
the exemption applies to the record withheld. Here, the Penitentiary denied the
Appellant’s request without citing an exemption or explaining how it applied. Rather,
by the Penitentiary’s own admission, the audio recordings were not available at the
time of the request because its audio equipment was malfunctioning. Thus, the
Penitentiary could have invoked KRS 61.872(5) because the records were “not
otherwise available.” Under KRS 61.872(5), if requested records cannot be provided
within the five-day period because they are “not otherwise available,” the agency
must notify the requester of the earliest date on which the records will be availableand provide a detailed explanation for the cause of delay. But here, the Penitentiary
did not notify the Appellant of the earliest date on which the audio recordings would
be available, denying his request outright without citing any exemption to the Act.
Further, on appeal, the Penitentiary refers to audio “recordings,” i.e., plural,
and the Appellant asked for all audio recordings of all his proceedings. However, the
Penitentiary’s response to the request addressed only a single audio recording—
referred to as “KSP-2023-0001330.” Thus, it appears the Penitentiary’s denial did not
fully address the Appellant’s request for all audio recordings of all his proceedings or
explain that multiple audio recordings were malfunctioning. An agency’s response
cannot ignore portions of request. See, e.g., 21-ORD-090. Accordingly, the
Penitentiary’s response violated the Act when it failed to address the Appellant’s
request for all audio recordings and denied his access to one such recording without
citing an exemption.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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/ Marc Manley
Marc Manley
Assistant Attorney General
#15
Distributed to:
Reginald Grider, Jr. #253921
Ed Baylous
Amy Barker
Ann Smith
Stephanie DeFrancesco