23-ORD-144
June 27, 2023
In re: Carlos Thurman/Green River Correctional Complex
Summary: The Green River Correctional Complex (the “Complex”) did
not violate the Open Records Act (“the Act”) when it denied a request to
inspect records that do not exist.
Open Records Decision
Inmate Carlos Thurman (“Appellant”) submitted a request to the Complex that
contained two subparts. First, he asked to inspect “any and all photographs” that
were taken of the Appellant by a Complex employee on a specific date. Second, he
requested all documents related to the picture that contained his name. In a timely
response, the Complex denied the request under KRS 61.872(2) because the request
was “vague as it can’t be determined if the request is in regards to a disciplinary
report and/or an incidence report.” The Complex explained that the request is an “any
and all” type request, and that those types of requests place “an unreasonable burden
on” it “to produce often incalculable numbers of widely dispersed and ill-defined
records.” This appeal followed.
On appeal, the Complex located a photograph responsive to subpart 1 of the
request and allowed the Appellant to inspect it.1 The Complex continues to deny the
second subpart of the Appellant’s request, only now it claims it does not possess any
records responsive to that subpart. Once a public agency states affirmatively that it
does not possess any responsive records, the burden shifts to the requester to present
1
Therefore, the part of this appeal dealing with subpart 1 is now moot. See 40 KAR 1:030 § 6 (“If
the requested documents are made available to the complaining party after a complaint is made, the
Attorney General shall decline to issue a decision in the matter.”)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). The Appellant has not attempted to make such a prima facie case here.
However, even if he had made a prima facie case that a photograph containing
his name should exist the Complex explains on appeal that the photograph was taken
“to provide documentation for the Substance Abuse Program . . . Administrator.” The
documentation was needed because inmates in that program were associating with
General Population inmates, which is against the rules of the program. The Appellant
is a General Population inmate and is not in the program. Thus, the Complex
explains, the Appellant “is not the subject or focus of the photograph” and there are
no related documents that reference him in any way. Accordingly, the Complex did
not violate the Act when it denied a request to inspect records that do not exist.
A party aggrieved by this decision may appeal it by initiating an 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
#215
Distributed to:
Carlos Thurman #112192
Amy V. Barker
Lydia C. Kendrick
Ann Smith