23-ORD-217
August 16, 2023
In re: Bradley Morris/Mayfield Police Department
Summary: The Mayfield Police Department (the “Department”)
violated the Open Records Act (“the Act”) when it failed to respond to a
request within five business days of receiving it. The Office is unable to
find that the Department violated the Act when it denied a request for
records that do not exist.
Open Records Decision
On July 5, 2023, inmate Bradley Morris (“Appellant”) submitted a request to
the Department for a copy of all the medical records related to a specific victim in his
criminal case. Having received no response by July 18, 2023, the Appellant initiated
this appeal.1
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . after the receipt of
any such request whether to comply with the request and shall notify in writing the
person making the request, within the five (5) day period, of its decision.” Here, the
Appellant claims he submitted his request on July 5, but did not receive a response
within five business days. On appeal, the Department states it received the
Appellant’s request on July 11, 2023, and that “for whatever reason, [it] did not
respond to [the Appellant’s] request until July 19, 2023.” Accordingly, the
Department violated the Act.
In its July 19, 2023, response, the Department denied the Appellant’s request
because “there are no medical records in” the Appellant’s criminal file. Once a public
1
Although the Appellant’s request for an appeal is undated, it is postmarked July 18, 2023.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).
To make a prima facie case that the requested medical records do exist within
the custody and control of the Department, the Appellant merely asserts that he “has
made a prima facie demonstration that [the Department] has the records.” The Office
has previously found that a requester’s bare assertion that an agency possesses the
requested records is not enough to establish a prima facie case that the agency
actually possesses them. See, e.g., 23-ORD-181; 23-ORD-142; 22-ORD-040. Here, the
Appellant’s bare assertion is not enough to make a prima facie case that the requested
records exist. As a result, the Office cannot find that the Department violated the Act
when it denied a request for 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
#318
Distributed to:Bradley Morris #188310
Nathan Kent
Jay M. Matheny
John Pace