23-ORD-319
December 5, 2023
In re: Glenn D. Odom/Kentucky State Penitentiary
Summary: The Office cannot find that the Kentucky State Penitentiary
(“the Penitentiary”) violated the Open Records Act (“the Act”) because it
cannot resolve the factual dispute between the parties about whether
the requester received the agency’s responses to his requests or whether
the requested records exist.
Open Records Decision
Over a two-week period, Inmate Glenn D. Odom (“Appellant”) submitted
multiple requests to the Penitentiary seeking the same records. He then initiated two
appeals to this Office, claiming the Penitentiary failed to respond to some of his
requests and improperly denied others. Because the parties involved are identical
and the issues presented are similar, the Office has consolidated these appeals.
As an initial matter, it is not clear from this record whether the Appellant has
provided all necessary documentation to perfect his appeals because he has submitted
so many duplicate requests for the same records to the Penitentiary. He then
compounded the complications by submitting multiple appeals to the Office. To
invoke the Office’s review of an agency’s alleged violation of the Act, the requester
must provide a copy of his request and the agency’s denial of that request. See
KRS 61.880(2)(a). Or, if the requester claims an agency failed to respond to his
request, he need only provide a copy of the request and a statement that the agency
failed to respond to that request. Id. But here, it is not clear if the Appellant has
provided the Penitentiary’s responses that correspond with the requests he claims to
have submitted. Assuming he has provided the necessary documents to invoke theOffice’s jurisdiction, the Office is nevertheless unable to conclude that the
Penitentiary violated the Act.
The Appellant claims he submitted his first requests on October 20, 2023.1
However, of the two requests he provides, one is dated October 10 and the other is
dated October 20, 2023. In his October 10 request, the Appellant sought all emails,
letters, or memoranda the Penitentiary sent to the Kentucky Correctional Psychiatric
Center (“KCPC”) regarding his “being sent for an evaluation [and] informing” KCPC
about “what [the Appellant’s] past behaviors have been [sic].” In a timely response,
the Penitentiary denied the request because the Appellant had not provided a form
required to authorize the deduction of copying fees from his account.2
The Appellant allegedly resubmitted his request on October 20, 2023, again
seeking the same types of correspondence “sent to” KCPC before his evaluation, which
suggested he “will be dangerous [and] violent.” The Appellant also added a second
subpart to his renewed request, seeking a copy of his “six-month account statement.”
He provides on appeal a response from the Penitentiary, dated October 26, 2023, that
acknowledges receipt of his request for correspondence sent to KCPC. However, that
response refers to a request dated October 23, not October 20. It also stated the
Appellant had sought correspondence sent to KCPC “informing them on what [his]
behavior may be—past behavior,” not correspondence that suggested he “will be
dangerous [and] violent.” Ultimately, the Penitentiary stated no responsive records
existed. The response also makes no mention of the Appellant’s request for his six-
month statement. He therefore claims the Penitentiary violated the Act because
responsive correspondence to KCPC should exist and because the Penitentiary did
not respond to his request for his “six-month account statement.” Finally, the
Appellant claims the Penitentiary did not respond at all to a request he allegedly
1
This aspect of the Appellant’s dispute with the Penitentiary is his second appeal, Log#2023000503.
However, because his second appeal involves requests he submitted earlier than the request at issue
in his first appeal, the Office will instead address each request in chronological order rather than
addressing the Appellant’s appeals in the order he submitted them.
2
Although the Appellant appears to complain that he did provide the requested form, he has not
expressly stated on appeal that he is challenging the Penitentiary’s denial of his October 10 request
for failure to execute the authorization form. Rather, he claims to have resubmitted the request on
October 20 with a copy of the required authorization form. To the extent he complains he should not
be required to complete such a form, the Office has held that correctional facilities may deny an
inmate’s request for failure to execute the authorization form permitting deductions from his account
to pay copying fees. See, e.g., 23-ORD-045; 21-ORD-015.submitted on October 23, 2023, which again asked for both the correspondence to
KCPC and his account statement.3
On appeal, the Penitentiary claims it received neither of the Appellant’s
October 20 or October 23 requests seeking both the correspondence to KCPC and his
account statement. Rather, it provides two separate requests it received from the
Appellant on October 23, 2023, one seeking the correspondence to KCPC and the
other seeking the account statement. It further provides proof that it responded to
each of those requests separately. With respect to the correspondence to KCPC, the
Penitentiary issued a response on October 26 stating no responsive records existed.4
Responding to the separate request for the account statement, the Penitentiary
provided the responsive record.5
As the foregoing discussion demonstrates, the factual dispute about whether
the Penitentiary received each of the Appellant’s requests, or whether the Appellant
received each of the Penitentiary’s responses, is complicated. And the Office is unable
to resolve factual disputes such as these. See, e.g., 23-ORD-220. As such, the Office
cannot find that the Penitentiary failed to respond to the Appellant’s multiple
requests because the Office cannot resolve the factual dispute between the parties as
to whether the Penitentiary received all of the Appellant’s requests or if the Appellant
received all of the Penitentiary’s responses to the requests it did receive.
Finally, to the extent the Appellant claims the Penitentiary has violated the
Act by not providing him with the requested correspondence to KCPC, the Office finds
no violation. The Penitentiary informed the Appellant multiple times that the
requested correspondence does not exist. On appeal, the Penitentiary states the only
correspondence to KCPC regarding the Appellant’s evaluation involved the logistics
of transferring him to that institution, not his alleged behavioral issues. As such, the
3
This aspect of the Appellant’s dispute with the Penitentiary, that it allegedly did not respond to
his October 23 request, was the Appellant’s first appeal submitted on October 31, 2023.
Log#202300499.
4
Indeed, this appears to be the same response the Appellant claimed corresponded to his October
20 request that sought both categories of records, which he faulted the Penitentiary for not responding
to the portion of his request seeking his account statement.
5
The Office notes, however, that the Penitentiary invoked KRS 61.872(5) to delay access to this
record until November 3, or beyond the five-day period established under KRS 61.880(1), because it
had “received several time-consuming open records request[s] that were received prior” to the
Appellant’s. KRS 61.872(5) only permits an agency to delay access to records if the records that have
been requested are “in active use, storage, or are not otherwise available.” An agency cannot invoke
KRS 61.872(5) because it has been inundated with other requests. See, e.g., 22-ORD-167. But here, the
Appellant has not claimed on appeal that the Penitentiary improperly invoked KRS 61.872(5).Penitentiary claims those records are not responsive to the Appellant’s request for
correspondence regarding his behavioral issues.
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, however, the Appellant has not
made a prima facie case that the Penitentiary should possesses correspondence from
its staff telling KCPC about the Appellant’s behavioral issues. Rather, he merely
asserts such records must exist because KCPC staff allegedly told him they had
received a communication stating he was dangerous and declined to perform his
evaluation. A requester’s bare assertion that a record must exist is not sufficient to
establish a prima facie case that it does. See, e.g., 23-ORD-207; 22-ORD-040; 19-ORD-
171. Accordingly, the Office cannot find that the Penitentiary 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/ Marc Manley
Marc Manley
Assistant Attorney General
#499 & 503
Distributed to:Glenn D. Odom #219489
Amy V. Barker
Sara M. Pittman
Ann Smith