23-ORD-041
February 22, 2023
In re: Rusty Weddle/Luther Luckett Correctional Complex
Summary: The Luther Luckett Correctional Complex (“the Complex”)
violated the Open Records Act (“the Act”) when it inadequately searched
for records responsive to one part of a request. However, the Complex
did not violate the Act when it denied a request for other requested
records that do not exist. The Complex also did not violate the Act by
withholding newly located records because of the requester’s inability to
pay for copies.
Open Records Decision
Inmate Rusty Weddle (“Appellant”) submitted to the Complex a request for
records containing two subparts. The first subpart requested “all emails to and from
internal affairs” related to restrictions placed on his access to phone, JPay email, and
canteen accounts. The second subpart requested “emails for the same above to and
from the Warden” and two other employees. Also in subpart two, the Appellant
requested “all emails and documents pertaining to” the same restrictions and his
“requests for [an] attorney.” In a timely response, the Complex denied subpart one,
and the portion of subpart two seeking emails, because no responsive emails exist.
However, the Complex neither granted nor denied the remaining portion of subpart
two, which sought “documents pertaining to” his restrictions and his requests for an
attorney. Instead, the Complex informed the Appellant that “per the memo” from an
employee, his access to “the KIOSK app on the tablets” had been “suspended,” which
prevented money transfers. Because the Appellant’s ability to transfer money was
suspended, his access to his phone, JPay email, and canteen accounts were
temporarily “halted or restricted.” The Complex also did not provide records relatingto the Appellant’s requests for attorneys, but informed him an employee had
scheduled calls with two attorneys, and one call had not been scheduled. This appeal
followed.
The Complex stated affirmatively in its response, and also on appeal, that no
emails between internal affairs, the Warden, or the two other employees regarding
the Appellant’s restrictions 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 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).
In an attempt to make a prima facie case, the Appellant provides copies of
grievances he has filed related to these restrictions. The Appellant also provides a
copy of a notice rejecting his grievance because he was under disciplinary
investigation. The Appellant argues that because his rejection notice specifically
refers to a disciplinary investigation, the Complex must possess emails regarding his
restrictions. However, this bare assertion that employees must have sent emails
regarding the Appellant’s restrictions does not constitute a prima facie case that the
Complex possesses any responsive email records. Accordingly, the Complex did not
violate the Act by denying the Appellant’s request for emails that the Complex claims
do not exist.1
Although the Appellant has not made a prima facie case that responsive emails
exist, the documents he provides on appeal do support a prima facie case that other
disciplinary records exist. Moreover, in its original response to the Appellant, the
Complex made specific reference to a memo written by an employee about the
Appellant’s restrictions and explained its contents, but did not produce the memo or
deny its inspection under any exception. On appeal, the Complex admits a
disciplinary investigation regarding the Appellant is ongoing, and now claims
responsive disciplinary records exist, but they are preliminary and exempt under
KRS 61.878(1)(i) and (j). It is not clear whether the memo the Complex originally
1
To the extent the Appellant also argues that copies of his grievances should have been provided,
any dispute regarding those records is moot because the Appellant now possesses them. See
40 KAR 1:030 § 6. Although neither the Appellant nor the Complex expressly states whether the
Complex provided him with copies of these grievances, it is not clear how else the Appellant would
have received them. He states only that he received them on January 18, the day after his request was
denied.referenced in its response is one of these preliminary disciplinary records. It is clear,
however, that the Appellant has made a prima facie case disciplinary records existed
at the time of his request and the Complex’s search for them was inadequate.
Moreover, the Complex also admits it has now located several emails with attorneys
to schedule phone calls with the Appellant, which it is withholding for the reasons
explained below. By failing to perform an adequate search for responsive records in
the first instance, the Complex violated the Act.
Nevertheless, the disciplinary records retain their preliminary status until
they are adopted as part of any final action the Complex takes. See, e.g., 21-ORD-202.
Thus, the Complex did not violate the Act by withholding these records. And the
Complex continues to withhold the emails attempting to schedule phone calls
between attorneys and the Appellant because he lacks the ability to pay for copies of
these records. The Complex explains that the Appellant’s monetary account is frozen
as part of the disciplinary investigation regarding alleged improper use of that
account. A public agency may demand prepayment of applicable copying fees before
providing copies to the requester. KRS 61.872(3)(b). The Office has consistently found
that a public agency is not required to provide free copies of records to an inmate
requester. See, e.g., 19-ORD-129; 18-ORD-119; 18-ORD-111; 15-ORD-006; 09-ORD-
071. Accordingly, the Complex did not violate the Act when it denied inspection of
records it subsequently located because of the Appellant’s inability to pay the copying
fee for such records.
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
#036Distributed to:
Rusty Weddle, #182312
Amy V. Barker
Lydia C. Kendrick
Ann Smith