22-ORD-256
September 25, 2023
In re: Eric Lloyd Hermansen/Finance and Administration Cabinet
Summary: The Finance and Administration Cabinet (“the Cabinet”)
did not violate the Open Records Act (“the Act”) when it denied a request
for records that do not exist.
Open Records Decision
Inmate Eric Lloyd Hermansen (“Appellant”) submitted a request to the
Cabinet for a copy of any “submissions” it received between 2021 and 2023 from the
Justice and Public Safety Cabinet or two other public agencies regarding a
“privatization contract with Union Supply and/or its subsidiaries” to operate canteen
services within the Commonwealth’s correctional facilities. In a timely response, the
Cabinet denied the Appellant’s request because it “was unable to locate” any
responsive records. The Cabinet also notified the Appellant that the Justice and
Public Safety Cabinet may possess the requested record and provided that agency’s
contact information. This appeal followed.
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 makes 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 requested copies of any “submissions” made to the Cabinet
related to a contract between the “Kentucky prison system” and “Union Supply”
allowing it to operate the canteen. In its initial response, and again on appeal, the
Cabinet stated affirmatively that it does not possess any records responsive to the
request. In an attempt to make a prima facie case that the Cabinet should possess
records responsive to his request, the Appellant provided an invoice from “Union
Supply Direct” for the purchase of two items to be shipped to the Eastern Kentucky
Correctional Complex. The Appellant asserts the invoice is proof that a contract must
exist between the “Kentucky prison system” and “Union Supply” and that the Cabinet
must possess “submissions” related to the contract pursuant to KRS 45A.551.
Under KRS 45A.551(1), “[u]pon approval of the [Cabinet], a state agency may
enter into a privatization contract.” Although KRS 45A.551 requires a state agency
to submit certain documentation to the Cabinet to obtain its approval before entering
a privatization contract, neither the statute nor the invoice showing that “Union
Supply Direct” purchased an item establishes a prima facie case that a privatization
contract exists between “Union Supply Direct” and any of the state agencies the
Appellant identified. As a result, the Appellant has failed to make a prima facie case
that the Cabinet possesses any records responsive to his request and the Office cannot
find that the Cabinet violated the Act.
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
#377Distributed to:
Eric Lloyd Hermansen #126673
Marline Mundine
Brian C. Thomas