22-ORD-283
December 29, 2022
In re: Carlos Harris/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 records that do not exist or when it denied a request
to preserve video footage.
Open Records Decision
Inmate Carlos Harris (“Appellant”) submitted to the Complex a request
containing two subparts. Subpart one requested that the Complex “[p]reserve video
footage” from November 5, 2022, when he “attended medical [sic] from legal library”
and purportedly was seen by medical staff to provide a urine sample at a specific
time. Subpart two sought “[c]onfirmation that [he] was seen in medical at the above
date and times.” In a timely response, the Complex denied his request because “there
[is] nothing in [the Appellant’s] chart on November 5, 2022.” This appeal followed.
On appeal, the Complex again states affirmatively that it does not possess any
records responsive to subpart two of his request. 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 or should exist. 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).Here, the Appellant does not make a prima facie case the requested records
exist.1 However, on appeal, the Complex admits the Appellant was “seen briefly by a
security camera in a hallway with what appears to be a urine sample.”2 It is not clear
from the record on appeal, however, whether the Appellant was seen providing the
sample for medical or disciplinary purposes, and if for the latter, whether the giving
of a urine sample must be documented in the Appellant’s medical file.
However, even if the Appellant had made a prima facie case that records
responsive to his request should exist, the Complex has sufficiently explained that its
search was adequate. Specifically, the Complex claims that its Medical Records
Custodian searched the Appellant’s medical records and “no records were found
where he visited medical staff on November 5, 2022.” Thus, the Complex did not
violate the Act when it denied a request for records that do not exist within its
possession.
Regarding the Appellant’s request that the Complex “preserve” the video
depicting him with the sample, the Complex argues its denial was proper because the
request sought not to inspect the video but to preserve it. This Office has routinely
found the Act does not require public agencies to comply with a request to preserve
records indefinitely. See, e.g., 20-ORD-067; 17-ORD-064; 15-ORD-121. Accordingly,
the Complex did not violate the Act when it denied a request to preserve a record.3
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.
1
The Appellant did not attempt to make a prima facie case that the records do or should exist but
stated the search for records “was performed by the inappropriate staff, because medical records
custodian does not have access to the video records that [he] requested” and “[a]ll medical records
custodian can perform is a search of files, which [he] did not request any records from his medical
files.”
2
Regardless of whether a record exists in the Appellant’s medical file, the Appellant asked for
“confirmation” that he was seen in the medical unit on the specific date with a urine sample. The
Complex’s admission on appeal that the Appellant appears on video at the requested time should serve
as the “confirmation” the Appellant seeks.
3
Because this Office finds subpart one of the Appellant’s request was not a request to inspect a
public record, it is unnecessary to determine the Complex’s alternative claim that the security footage
is exempt under KRS 197.025(1). But see, e.g., 19-ORD-040 (upholding a correctional facility’s denial
of security video under KRS 197.025(1)); 18-ORD-169 (same).Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#465
Distributed to:
Carlos Harris, #143261
Peter W. Dooley