23-ORD-074
March 28, 2023
In re: Tequan Neblett/Luther Luckett Correctional Complex
Summary: The Luther Luckett Correctional Complex (“the Complex”)
subverted the intent of Open Records Act (“the Act”) by misdirecting an
inmate’s request to the incorrect records custodian.
Open Records Decision
On February 1, 2023, inmate Tequan Neblett (“the Appellant”) submitted a
request to the Complex, to the attention of the healthcare administrator, asking for
a copy of a letter he allegedly sent to her. In a timely response, the Complex’s medical
records custodian denied the request because no such letter existed.1 On February
10, 2023, the Appellant submitted two more requests, these to the attention of
“inmate records,” seeking a copy of the “tablet agreement” he signed and his outgoing
legal mail for the months of November and December 2022. In a timely response, the
medical records custodian again denied the request because neither of these records
appeared in the Appellant’s “medical file.” The Appellant then initiated this appeal,
claiming the Complex directed his requests to the wrong records custodian.
Specifically, he admits neither the “tablet agreement” nor his legal mail would exist
in his medical file, so it was inappropriate for the medical records custodian to
respond to these requests.
“If a person feels the intent of [the Act] is being subverted by an agency short
of denial of inspection, including but not limited to . . . the misdirection of the
applicant, the person may complain in writing to the Attorney General, and the
complaint shall be subject to the same adjudicatory process as if the record had been
1
The Complex did not receive the request until February 15, 2023, and issued its response on
February 17, 2023. Because a public agency must respond within five business days of receiving a
request to inspect records, KRS 61.880(1), the Complex’s response was timely issued two business days
after receipt.denied.” KRS 61.880(4). On appeal, the Complex states its medical records custodian
should not have responded to the Appellant’s second and third requests. Under
KRS 61.872(4), “[i]f the person to whom the application is directed does not have
custody or control of the public record requested, that person shall notify the
applicant and shall furnish the name and location of the official custodian of the
agency’s public records.” The Appellant properly addressed his second and third
requests to the person who would have custody and control of the requested records,
but his application was misdirected to the medical records department. Accordingly,
the Complex subverted the intent of the Act, short of denial, by misdirecting the
Appellant’s request that was properly addressed to its official records custodian.
After receipt of the appeal, the records custodian for inmate files reviewed the
requests and located the requested “tablet agreement” and legal mail logs for the
requested months. Accordingly, any dispute regarding those records is now moot. See
40 KAR 1:030 § 6. However, the Complex states it does not possess a copy of the letter
the Appellant allegedly sent to the healthcare administrator, who is an independent
contractor for Wellpath, LLC. The Complex also states it does not possess copies of
the legal mail the Appellant sent outside the institution. 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).
The Appellant has not made a prima facie case the letter he allegedly sent to
Wellpath exists, or that the Complex should possess copies of his legal mail sent
outside of the institution.2 Accordingly, the Complex did not violate the Act when it
denied a request for records that do not exist.
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 emailed to OAGAppeals@ky.gov.
2
To the contrary, the Complex should not possess copies of communications between inmates and
their attorneys, which would be protected by the attorney-client privilege. See KRE 503.Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#101
Distributed to:
Taquan Neblett #119028
Jesse L. Robbins
Ann Smith
Lydia Kendrick