24-ORD-090
April 3, 2024
In re: Carlos Harris/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (“Complex”)
did not violate the Open Records Act (“the Act”) when it did not provide
records that do not exist. The Office cannot resolve the factual dispute
between the parties regarding when the Complex responded to the
request.
Open Records Decision
On February 26, 2024, inmate Carlos Harris (“Appellant”) submitted a request
to the Complex for copies of “communication[s]” between two specified Complex
employees and a surgeon regarding the decision to cancel his surgery. In a
memorandum dated March 1, 2024, the Complex stated that “no record responsive to
your request was found in your KYDOC electronic medical record.” However, the
Appellant did not receive the Complex’s denial until March 5, 2024. He then initiated
this appeal, claiming the Complex’s response was untimely and that responsive
records must exist.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request or deny the request and explain why.
KRS 61.880(1). Here, the Appellant claims he submitted a request to the Department
on February 26, 2024, but did not receive the Complex’s response until March 5, 2024.
On appeal, the Complex states that it responded to the request on March 1, 2024, the
fourth business day after it received the request. However, it is unclear from this
record when the Complex actually issued its response. While its memorandum
explaining why the request was denied is dated March 1, the Complex’s record
custodian signed the Appellant’s request form on March 5, stating, “see enclosed
memo.” Thus, it appears the Complex did not send its memorandum of denial until
March 5. Ultimately, whether the Complex issued its denial on March 1 or March 5is a factual dispute the Office cannot resolve. See, e.g., 23-ORD-319 (factual dispute
as to whether the requester received the agency’s response). Accordingly, the Office
cannot find the Complex violated the Act because the Office cannot resolve the factual
dispute between the parties as to the date the Complex responded to the Appellant’s
request.
On appeal, the Complex maintains that, if the requested communications
existed, they would be located in the Appellant’s medical file. But the Complex has
searched the Appellant’s medical file twice, first in response to his request and again
in response to this appeal, and confirms that the requested “communications” cannot
be found in the Appellant’s medical file. 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 Complex
possesses “communications” between the identified surgeon and two Complex
employees. Therefore, the Complex 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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General#159
Distributed to:
Carlos Harris #143261
Michelle Harrison
Stephanie L. DeFrancesco
Ann Smith