24-ORD-100
April 17, 2024
In re: Ben W. Richard, Jr./Luther Luckett Correctional Complex
Summary: Although the Luther Luckett Correctional Complex (the
“Complex”) violated the Open Records Act (“the Act”) when it did not
originally conduct an adequate search for requested records, it has
mitigated its violation by conducting an adequate search and providing
the Appellant all responsive records that exist.
Open Records Decision
Inmate Ben W. Richard, Jr (“Appellant”) submitted two requests to the
Complex to inspect various records.1 In timely responses, the Complex partially
granted the requests and provided 22 pages of responsive records. The Complex
partially denied the requests because “the signed monthly reports for 2021 have been
discarded due to the retention schedule of the reports.” The Complex affirmatively
stated it does not possess any additional responsive records other than those it
provided to the Appellant. This appeal followed.
Once a public agency states affirmatively that it does not possess any additional
records, the burden shifts to the requester to present a prima facie case that
additional records do 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
additional records do or should exist, “then the 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). To support a
claim that the agency possesses responsive records it did not provide, the Appellant
1
First, the Appellant requested a copy of his “LexisNex[i]s Research database signed monthly
reports” from January 2021 to October 2023. Second, the Appellant requested a copy of “each monthly
legal supplies log, signed by [L]egal Aid Ben Richard” from January 2021 to February 2024.must produce some evidence that calls into doubt the adequacy of the agency's search.
See, e.g., 95-ORD-96.
Here, the Appellant has not made a prima facie case that additional records
should exist or that the Complex’s search was inadequate. Rather, he merely asserts
that the types of reports he has requested should exist.2 As a result, the Appellant
failed to establish a prima facie case that the Complex should possess additional
records. Nevertheless, the Complex states it conducted another search after receiving
notice of this appeal and located an additional five pages of responsive records. It will
make those records available to the Appellant after he pays the $0.50 copying fee.
The Complex explains that all records requested from 2021 were destroyed in
accordance with its retention schedule. Further, the Complex explains that it
“implemented a new procedure” in 2023, and therefore, no additional logs were
created or used since then.
The Office has previously found that a public agency fails to conduct an
adequate search when it does not locate all responsive records. See, e.g., 21-ORD-242;
21-ORD-178; 20-ORD-013. Thus, while the Complex’s candor on appeal is welcome,
it has admitted its initial search was inadequate. Accordingly, by failing to perform
an adequate search in the first instance, the Complex violated the Act, but its
subsequent and more comprehensive search on appeal has mitigated its initial
violation.
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
The Appellant primarily relies on Kendrick v. Bland, 586 F.Supp. 1536 (W.D. Ky. 1984), which
found the law library at the Kentucky State Reformatory to be inadequate. As such, the Kentucky State
Penitentiary entered a consent decree to improve library services. However, this consent decree, which
required the Kentucky State Penitentiary to procure certain legal texts in 1984, has no bearing on
whether the Luther Luckett Correctional Complex, which is a different correctional facility, maintains
digital reports of LexisNexis searches. The Appellant also provides copies of various reports he
received from the Complex documenting the time he spent conducting research on the Complex’s
computers. However, these documents do not establish that the Complex must possess copies of a
“LexisNexis Research database” for the periods he was conducting research.Russell Coleman
Attorney General
/s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#171
Distributed to:
Ben W. Richard, Jr. #199197
Michelle Harrison
Stephanie L. DeFrancesco
Ann Smith