22-ORD-208

22-ORD-208
October 7, 2022
In re: Cecil Salyers/Madisonville Police Department
Summary: The Madisonville Police Department (“the Department”)
violated the Open Records Act (“the Act”) when it failed to issue a timely
response to a request. The Department did not violate the Act when it
did not provide records that do not exist.
Open Records Decision
On August 26, 2022, inmate Cecil Salyers (“Appellant”) made a request to the
Department for three recorded statements related to his trial, for the warrant and
affidavit related to the search of his home and his computer equipment, and for a
copy of maintenance reports related to the Department’s recording equipment. On
September 9, 2022, having received no response, the Appellant initiated this appeal.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain why.
KRS 61.880(1). On appeal, the Department admits that it did not timely respond to
the Appellant’s request. Thus, the Department violated the Act when it failed to issue
a timely response to the Appellant.
After the appeal was initiated, the Department responded to the request and
stated that none of the records requested by the Appellant exist. 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 exist. See Bowling v.
Lexington-Fayette Urb. Cnty. Gov., 172 S.W.3d 333, 341 (Ky. 2005). If the requester
is able to make 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 not established a prima facie case that the requested
records exist. Therefore, the Department did not violate the Act when it did not
provide the requested records. Furthermore, even if the Appellant had established a
prima facie case, the Department sufficiently explains on appeal why the records
requested by the Appellant do not exist. According to the Department, the recorded
statements contain only audio, because the video camera was not working during the
three interviews referenced by the Appellant. Second, no warrants or affidavits were
executed because the Appellant gave officers consent to search. Finally, the
Department states that maintenance reports for video equipment have “never
existed.” Thus, even if the Appellant had established a prima facie case that
responsive records should exist, the Department has adequately explained why the
records do not exist. Therefore, the Department did not violate the Act.
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 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 e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/Marc Manley
Marc Manley
Assistant Attorney General
#341
Distributed to:
Cecil W. Salyers, Jr. #085814
Joe Evans
Steve Bryan