24-ORD-025

January 29, 2024

In re: Uriah Pasha/Western Kentucky Correctional Complex

Summary: The Office cannot find that the Western Kentucky
Correctional Complex (“Department”) violated the Open Records Act
(“the Act”) when it did not provide records that do not exist.

Open Records Decision

Uriah Pasha (“Appellant”) submitted a request seeking “a copy of Central
Office’s response to” an administrative appeal the Appellant submitted on December
19, 2023. In response, the Complex stated a copy of Central Office’s response to his
December 19, 2023, appeal does not exist. This appeal followed.

On appeal, the Complex maintains that the record the Appellant requested
does 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 provides a copy of an administrative complaint he
allegedly submitted on December 13, 2023, and a copy of his administrative appeal
he allegedly initiated on December 19, 2023. He argues the Central Office must have
issued a response because his appeal exists. In response, the Complex states it has
searched the files located at both the Central Office and the Complex, but it has no
record of having received either the Appellant’s administrative complaint or his
appeal dated December 19, 2023. Accordingly, no response to the appeal exists
because it has no record that the appeal had been received. The Office cannot resolvefactual disputes between a requester and a public agency, such as whether the public
agency actually received an administrative appeal. See, e.g., 23-ORD-071; 23-ORD-
005; 22-ORD-216; 22-ORD-148; 22-ORD-125; 21-ORD-163. Regardless, simply
providing a copy of an administrative appeal does not present a prima facie case that
the Complex received it and responded to it. Therefore, the Office cannot find that
the Complex violated the Act when it did not provide records it does not possess.

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.

Russell Coleman

Attorney General

/s/ Zachary M. Zimmerer

Zachary M. Zimmerer

Assistant Attorney General

#009

Distributed to:

Uriah M. Pasha #092028
Amy V. Barker
Stephanie DeFrancesco
Ann Smith

LLM Summary

In 24-ORD-025, the Attorney General's Office determined that the Western Kentucky Correctional Complex did not violate the Open Records Act by not providing records that do not exist. The decision emphasizes that the Office cannot resolve factual disputes about whether the Complex actually received an administrative appeal from the appellant, Uriah Pasha. The decision cites several previous ORD decisions to support this principle and concludes that simply providing a copy of an administrative appeal does not establish that the Complex received and responded to it.

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