22-ORD-247
November 16, 2022
In re: Carlos Thurman/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (the
“Complex”) did not violate the Open Records Act (“the Act”) when it
denied a request for a record that does not exist within its possession.
Open Records Decision
Inmate Carlos Thurman (“Appellant”) submitted a request to the Complex for
a copy of a “[backlog sheet] of [l]abs with [his] name on it for blood that was drawn
from [him] on” a specific date. In a timely response, the Complex denied his request
because it was “not part of [his] medical record” and it is not required to “create a
record to satisfy an open records request.”1 This appeal followed.
On appeal, the Complex again claims the requested record does not exist
within its possession. 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 requested records do or should exist in the possession of the public agency.
See Bowling v. Lexington-Fayette Urb. Cnty. Gov’t, 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).
1
This Office has previously found that an agency is not required to create a record to satisfy a
request under the Act. See, e.g., 22-ORD-224.Historically, this Office has found that a requester’s bare assertion is not
enough to make a prima facie case that a record exists in the possession of the agency.
See, e.g., 22-ORD-141; 21-ORD-114; 20-ORD-094. To establish a prima facie case, a
requester must provide some evidence to support his claim that the requested record
exists, such as a statute or regulation requiring the creation of the requested record,
or other factual support for the existence of a record. See, e.g., 22-ORD-141; 21-ORD-
177; 11-ORD-074.
Here, in an attempt to make a prima facie case that the Complex possesses a
“backlog sheet,” the Appellant claims that a Complex employee “stated in her
response to [his] grievance that [his] blood was drawn on 8-4-22 from a backlog from
5-24-22.” The Appellant asserts the Complex should possess the May 24 “backlog
sheet” that ordered his bloodwork. As proof, the Appellant provided a copy of the
grievance form related to his August 4 bloodwork. On the grievance form the Complex
employee stated that “the blood work drawn on 8/4/22 was for previous labs ordered
on 5/24/22.” The Complex employee then “[a]dvised [the Appellant] he could do an
open records request to get his results or he can be scheduled with the provider to
review the results” (emphasis added).
The Appellant’s documentation only suggests that the Complex may possess
a record containing his test results, not that it currently possesses the “backlog sheet”
that ordered the bloodwork. Thus, the Appellant failed to make a prima facie case
that the Complex possesses a record responsive to his request.
Furthermore, even if the Appellant had made a prima facie case that the
requested record exists or should exist, the Complex sufficiently explains on appeal
why it does not possess such a record. First, the Complex explains, the “backlog sheet”
the Appellant requested is a temporary document “used as working notes” and is
“generated by the medical records system from orders.” Second, the Complex explains
that the “backlog sheet” the Appellant requested “is not made part of an inmate’s
medical records and it does not exist with the inmate’s name after the specimen is
drawn.” Once the specimen is drawn, the “backlog sheet” that the Appellant
requested “no longer exists since it constantly changes with new orders and
specimens being drawn.” These are sufficient explanations why the requested record
no longer exists. See, e.g., 22-ORD-056 (where the Office found, in a dispute between
these same parties about the Appellant’s medical records, that the Complex
adequately explained why certain medical records did not exist). Accordingly, the
Complex did not violate the Act.A party aggrieved by this decision may appeal it by initiating 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.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#403
Distributed to:
Carlos Thurman #112192
Amy V. Barker
Sara M. Pittman
Ann Smith