23-ORD-107
May 8, 2023
In re: Uriah Pasha/Kentucky Parole Board
Summary: The Kentucky Parole Board (“the Board”) did not violate
the Open Records Act (“the Act”) when it did not provide records that do
not exist in its custody or control.
Open Records Decision
On March 16, 2023, inmate Uriah Pasha (“Appellant”) requested a copy of all
correspondence he exchanged with the Board between June and October 2020. In
response, the Board stated it did not have any records responsive to the request. The
Board explained that inmate correspondence is part of “the official inmate record,”
which is “maintained in the Kentucky Offender Management System (KOMS) and
the custodian of those records is the [Kentucky] Department of Corrections.” Finally,
the Board provided the name and address of the records custodian for the Department
of Corrections. This appeal followed.
Once a public agency states affirmatively that it does not possess any
responsive records, the burden shifts to the requester to present a prima facie case
that the requested records do exist in the agency’s custody or control. See Bowling v.
Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the requester
establishes a prima facie case that records do or should exist in the agency’s custody
or control, “then the agency may also be called upon to prove that its search was
adequate.” City of Ft. 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 claims the Board “has access to KOMS” and failed to
search that system for records. However, “an agency’s ‘access’ to digital records,
without more, does not mean that the public agency is the custodian of such records.”
22-ORD-131 (quoting 20-ORD-109). A public agency “is responsible only for thoserecords within its own custody or control.” City of Ft. Thomas, 406 S.W.3d at 856
(citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980));
see also Dep’t of Revenue v. Eifler, 436 S.W.3d 530, 534 (Ky. App. 2013) (“The ORA
does not dictate that [a] public agenc[y] must gather and supply information not
regularly kept as part of its records.”). Thus, the Appellant has not established a
prima facie case that the responsive records are in the Board’s custody or control.
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 addressed his application to the Board, which
does not have custody or control of the requested records. By providing the name and
location of the records custodian for the Department of Corrections, the Board
complied with KRS 61.872(4). Thus, the Board did not violate the Act in its disposition
of the Appellant’s request.
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.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#155
Distributed to:
Uriah Pasha, #092028
Seth E. Fawns, Esq.
Ms. Angela D. Tolley