23-ORD-302
November 13, 2023
In re: Lewis Davenport/Department of Corrections
Summary: The Department of Corrections (“the Department”) did not
violate the Open Records Act (“the Act”) when it did not provide records
that do not exist.
Open Records Decision
On September 17, 2023, inmate Lewis Davenport (“Appellant”) submitted a
request to the Department seeking a variety of records related to the revocation of
his parole.1 Having received no response by October 10, 2023, the Appellant initiated
this appeal.
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.”
However,
the
Office
has
consistently
found
it
is
unable
to
resolve factual disputes between a requester and a public agency, such as whether a
requester received an agency’s response to a request. See 21-ORD-233 (the agency
claimed it issued a response, but the requester claimed he did not receive it); see
also 22-ORD-125 (the agency claimed it did not receive the request); 22-ORD-100
(same); 22-ORD-051 (same); 21-ORD-163 (same).
1
Specifically, the Appellant sought (1) the “violation of supervision report,” (2) the “written notice
of the claimed violations of parole and the evidence used against” the Appellant, (3) the “notice of
preliminary hearings including the signed waiver forms with initials and signature of” the Appellant,
(4) the “parole violation warrant,” and (5) “copies of any and all documents related to” the Appellant.Here, the Department states it received the request on September 20, 2023. It
further provides a copy of the response it claims to have mailed to the Appellant on
September 27, 2023, which was the fifth business day after the Department received
the request. Accordingly, the Office cannot resolve the factual dispute between the
parties about whether the Department issued the response or whether the Appellant
received it, and therefore, cannot find that the Department’s response was untimely
in violation of the Act.2
In its response, the Department also notified the Appellant that the requested
“Notice of Preliminary Hearing, and the Notice of the Claimed violations of Parole”
do not exist. 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
made a prima facie case that the Department possesses these records. Therefore, the
Department did not violate the Act when it did not provide them.
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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#457
2
In its response, the Department offered to provide all existing records responsive to the request
upon payment of copying fees.Distributed to:
Lewis Earl Davenport #158983
Amy V. Barker
Sara M. Pittman
Ann Smith