23-ORD-262
October 2, 2023
In re: Antonio Dionte Williamson Trust/Department of Corrections
Summary: The Department of Corrections (“the Department”) did not
violate the Open Records Act (“the Act”) when it denied a request for a
record that does not exist.
Open Records Decision
Antonio Dionte Williamson, the beneficiary of the Antonio Dionte Williamson
Trust (“Appellant”), submitted a request to the Department for “all details about” a
bond it issued with an identified “CUSIP number.”1 In a timely response, the
Department denied the Appellant’s request because, “[a]fter performing a diligent
search, no records were found responsive to [his] request.” 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 has not attempted to make a prima facie case that the
Department should possess the record he described. Rather, he merely asserts the
Department’s “response is incorrect” because he “provided specific information about
the bond in his request.” On appeal, the Department again states it does not possess
1
The Appellant sought “all details about” a “Kentucky Department of Corrections Correctional
Building Revenue Bonds Series 2023” with “[t]he DKYW321CR000123-001 CUSIP number.”any records responsive to the Appellant’s request. In reply, the Appellant asserts the
Department “does have this record” and that it “failed to properly search for the
record.” The Office has previously found that a requester’s bare assertion that an
agency possesses the requested record is not enough to make a prima facie case that
the record exists. See, e.g., 23-ORD-217; 23-ORD-181; 23-ORD-142; 22-ORD-040.
Similarly, the Appellant’s bare assertions here do not make a prima facie case that
the requested record does or should exist. Accordingly, the Office cannot find that the
Department violated the Act when it denied a request for a record that it claims does
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
#390
Distributed to:
Antonio Williamson Trust
Jesse L. Robbins
Keesha Solomon