23-ORD-090

April 18, 2023

In re: Leonel Martinez/Lee Adjustment Center

Summary: The Lee Adjustment Center (the “Center”) did not violate
the Open Records Act (“the Act”) when it denied a request for a record
that no longer existed within its possession at the time of the request.

Open Records Decision

Inmate Leonel Martinez (“Appellant”) submitted a request to the Center for a
copy of its denial of his request to move to a different cell. In a timely response, the
Center denied his request because the requested record was discarded after the
Appellant was informed his request to move was denied. This appeal followed.

On appeal, the Center again states affirmatively that the requested record no
longer exists. Specifically, the Center states that the requested record “was disposed
of after his request for a different bed placement was denied.” 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 dispute that the requested record no longer exists,
but rather, he complains that “legal documents were destroyed.” However, the
Appellant does not cite to any authority, such as the Center’s record retention
schedule, that would require the Center to retain and possess the record he requested.Moreover, even if he had made a prima facie case the Center should still possess the
record, and he has not, the Center adequately explained the record was destroyed
and no longer exists. See Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011)
(“when it is determined that an agency’s records do not exist, the person requesting
those records is entitled to a written explanation for their nonexistence”). Thus, the
Center did not violate the Act when it denied a request for a record it no longer
possesses.

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

#128

Distributed to:

Leonel Martinez #216925
Kristy Hale
Daniel Akers
G. Edward Henry

LLM Summary

The decision in 23-ORD-090 confirms that the Lee Adjustment Center did not violate the Open Records Act when it denied Leonel Martinez's request for a record that was no longer in its possession. The decision outlines the principles that once a public agency states a record does not exist, the burden shifts to the requester to prove otherwise. The decision also notes that the appellant did not provide evidence that the record should still exist or that the agency's search was inadequate. Therefore, the denial of the record request was upheld.

Support Our Work