21-ORD-083 | KOGC

Opinion

Opinion By: Daniel Cameron,Attorney General;Marc Manley,Assistant Attorney General

Open Records Decision

Inmate Leonel Martinez ("Appellant") requested from the Governor's Office a copy of a taxi license issued to him in 2006 and a copy of records documenting former Governor Ernie Fletcher's appointment of a specific Commonwealth's Attorney. Although the Appellant's name and inmate number appeared on the request, both were illegible. The Governor's Office timely issued responses to both requests, but misspelled Appellant's name and provided the wrong inmate number. Thus, the responses were returned to the Governor's Office as undeliverable. Having never received responses from the Governor's Office, the Appellant filed this appeal.

The Governor's Office received the returned mail the same day the Appellant mailed his appeal to this Office. Once notified that its response had not been delivered, the Governor's Office correctly identified Appellant and again responded to his requests. On these facts, this Office declines to find that the Governor's Office violated the Act's timeliness provision. See 11-ORD-008.

In its response, the Governor's Office explained that after a diligent search it could not locate the requested records. Once a public agency states affirmatively that it does not possess any responsive records, the burden shifts to the requester to present a prima facie case that the requested records do exist.

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). Here, the Appellant has provided no basis to suggest that such documents do or should exist within the possession of the Governor's Office. Therefore, the Governor's Office did not violate the Act when it was unable to provide records that do not exist within its possession.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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.

LLM Summary

In this decision, the Attorney General's Office addressed an appeal by inmate Leonel Martinez regarding his open records request to the Governor's Office for specific documents. The Governor's Office initially responded with incorrect details due to illegible information in the request, leading to undeliverable responses. After being notified of the non-delivery, the Governor's Office corrected the details and responded again, stating that the requested records could not be located. The decision concludes that the Governor's Office did not violate the timeliness provision of the Act and upheld the response that no records were found, placing the burden of proof on the appellant to demonstrate the existence of the records.

Support Our Work