23-ORD-278
October 20, 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 did not provide
records that do not exist.
Open Records Decision
On September 15, 2023, inmate Carlos Thurman (“Appellant”) requested “a
copy of the email that was censored on 8-1-23 and the administrator’s email date 8-
1-23.”1 In a timely response, the Complex denied the request because “JPay friends
and family emails are not public records” and are “communications of a purely
personal
nature
unrelated
to
any
governmental
function
pursuant
to
KRS 61.878(1)(r).” This appeal followed.
On appeal, the Complex claims the requested “email that was censored” does
not exist because the Complex and the Department of Corrections “do not edit
emails.”2 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 exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341
(Ky. 2005). The mere assertion that records exist is not sufficient to establish a prima
facie case that they do exist. See, e.g., 23-ORD-042. Here, the Appellant has not
presented a prima facie case that a censored email exists. Accordingly, the Complex
did not violate the Act.
1
The Appellant also requested a legal mail log sheet, which was provided to him.
2
Assuming the “administrator’s email” requested by the Appellant is related to the alleged
censoring of the Appellant’s email, the Complex’s position indicates that record does not exist, either.A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#420
Distribution:
Carlos Thurman, #112192
Jonathan Gifford, Esq.
Ms. Sara M. Pittman
Ms. Ann Smith