23-ORD-169
July 11, 2023
In re: William Cope/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (the
“Complex”) did not violate the Open Records Act (“the Act”) when it did
not provide records it does not possess.
Open Records Decision
Inmate William Cope (“Appellant”) submitted two requests to the Complex to
inspect various records relating to music purchases he has made.1 The Complex
denied the request because it does not possess responsive records. This appeal
followed.
On appeal, the Complex maintains that it does not possess records responsive
to the Appellants request. Rather, it states the records are possessed by an
unaffiliated “digital media vendor.” 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).
1
Specifically, the Appellant sought: (1) a copy of a list showing the 290 songs a specified individual
had sent him; and (2) “inmate account financial transaction media-management purchases receipts”
associated with 320 songs he claims are in his mp3 player database.Here, the Appellant has not established a prima facie case that the records
related to his songs exist. Therefore, the Complex did not violate the Act when it did
not provide records it does not possess.2
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
/Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#250
Distributed to:
William D. Cope, Jr. #197416
Amy V. Barker
Lydia C. Kendrick
Ann Smith
2
The Complex also denied the request because the Appellant possessed insufficient funds to
complete his requests. Because the Office agrees the Complex properly denied the request because it
does not possess responsive records, the Office declines to consider the Complex’s other reason for its
denial.