23-ORD-048
March 3, 2023
In re: Marvin T. Pennington/Kentucky Department of Corrections
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 currently exist within its
possession. This Office cannot resolve the factual dispute of whether the
Complex’s denial was timely issued.
Open Records Decision
On December 27, 2022, inmate Marvin T. Pennington (“Appellant”) submitted
a request to the Complex for a copy of an “exit property form” created on a specific
date when he was transferred to the Little Sandy Correctional Complex. On February
1, 2023, the Appellant initiated this appeal and claimed he did not receive a response
to his request.
Under KRS 61.880(1), upon receiving a request to inspect records under the
Act, a public agency “shall determine within five (5) [business] days . . . whether to
comply with the request and shall notify in writing the person making the request,
within the five (5) day period, of its decision.”
Here, the Appellant submitted a request to the Complex on December 27, 2022,
and claims he did not receive a response to that request. On appeal, the Complex
states it received the Appellant’s request on January 9, 2023, and issued its response
on January 12, 2023. As proof, the Complex provides a copy of a letter dated January
12, 2023, in which it denied the Appellant’s request because the Complex does not
currently possess the requested record. The Complex’s response instructed the
Appellant to contact the Little Sandy Correctional Complex’s official recordscustodian because the responsive record was sent to that correctional facility with the
Appellant. If the Complex’s response was mailed on January 12, 2023, it would have
been issued timely. However, this Office is unable to resolve factual disputes, such as
whether the requester received the agency’s response once the agency provides proof
that it mailed the response.1 See, e.g., 23-ORD-036; 21-ORD-233.
Regarding the merits of the Complex’s denial, it stated affirmatively that it
does not possess the requested record. 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, although the Appellant claims he did not receive the Complex’s response
denying his request, he nevertheless cites Correctional Policies and Procedures
(“CPP”) 17.1 (II)(E)(1) and CPP 17.1 (II)(E)(3) in an attempt to make a prima facie
case that the Complex should possess the requested record. Under CPP 17.1(II)(E)(1),
“[i]f an inmate is transferred by Corrections from one institution to another, all
personal effects, personal and state issued clothing and property, including legal
material, shall be inventoried and transferred with the inmate.” Pursuant to CPP
17.1(II)(E)(2), “(t)he sending institution shall inventory all property prior to the
inmate leaving the institution on transfer to another facility.” Thus, under CPP 17.1,
the Complex was required to create the requested form before transferring the
Appellant to the Little Sandy Correctional Complex and the Appellant has made a
prima facie case the record should exist.
However, the Complex does not deny that it created the requested record.
Rather, the Complex claims it did not possess the record at the time of the Appellant’s
request. The Complex’s response explained that the Complex does not currently
possesses the requested property inventory form because such forms are transferred
with the inmate’s property to the receiving institution.2 Moreover, according to the
1
Likewise, this Office cannot adjudicate ancillary legal disputes in the context of an appeal brought
under KRS 61.880(2). See, e.g., 22-ORD-244 n.3. As such, this Office cannot adjudicate whether the
Complex violated CPP 17.1(II)(E)(1), as the Appellant claims, when it allegedly did not allow him to
sign the property form that is the subject of this appeal.
2
Under CCP 17.1 (II)(E)(3), “[t]he receiving institution shall inventory the items of the arriving
inmate and assist in the disposition of all unauthorized items.”Department of Corrections’ retention schedule, inmate inventory and property forms
must be retained “at [the] assigned correctional institution” for five years from the
date of issue.3 Thus, under the applicable retention schedule, the Little Sandy
Correctional Complex should possess the requested record, not the Complex.
Complying with KRS 61.872(4), the Complex provided the Appellant the contact
information for the Little Sandy Correctional Complex’s official custodian of records.
Accordingly, the Complex did not violate the Act when it denied a request for a record
that it does not currently possess.
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
#055
Distributed to:
Marvin T. Pennington #119935
Edward A. Baylous
Lydia C. Kendrick
Ann Smith
3
Dept.
of
Corrections
Records
Retention
Schedule,
Series
05952,
available
at
https://kdla.ky.gov/records/RetentionSchedules/Documents/State%20Record…
ions.PDF (last accessed Mar. 3, 2023)