22-ORD-222
October 20, 2022
In re: Brandon Dawson/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (“the
Complex”) did not violate the Open Records Act (“the Act”) when it did
not provide records that do not exist.
Open Records Decision
Inmate Brandon Dawson (“Appellant”) submitted a request to the Complex for
copies “of [his] parole hearing, what was said, and the transcript from the hearing.”
The Complex denied the request under KRS 439.510 and KRS 61.878(1)(l). This
appeal followed.
On appeal, the Complex states that, although it initially denied the request
under KRS 439.510 and KRS 61.878(1)(l), none of the requested records actually exist
in the Complex’s possession. 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. Even if the Appellant had established a prima facie case, the Complex
sufficiently explains on appeal that the records requested by the Appellant do not
exist. According to the Complex, the Appellant received a “file review” rather than a
full hearing. As a result, there is no audio recording nor transcript for the Complex
to produce. See, e.g., 22-ORD-137 (explaining that certain categories of offenders receive
a “file review” instead of “face-to-face hearings”). Thus, even if the Appellant hadestablished a prima facie case that responsive records should exist, the Complex has
adequately explained why the records do not exist. Therefore, the Complex did not
violate the Act when it did not produce records that do not exist.1
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/ Zachary Zimmerer
Zachary Zimmerer
Assistant Attorney General
#370
Distributed to:
Brandon Dawson #254796
Amy V. Barker
Sara M. Pittman
Ann Smith
1
Accordingly, it is unnecessary to decide whether KRS 439.510 and KRS 61.878(1)(l) apply to a
parole hearing audio recording or transcript.