24-ORD-127
May 24, 2024
In re: Donald Phillips/Lee Adjustment Center
Summary: The Lee Adjustment Center (“Center”) violated the Open
Records Act (“the Act”) when it denied a request for records without
citing a specific exemption to justify its denial of the request. The Center
did not violate the Act when it did not provide records that do not exist.
Open Records Decision
Inmate Donald Phillips (“Appellant”) submitted a request to the Center for “the
results of [his] most recent risk and needs assessment.” In response, the Center
denied the request stating, “inmate risk and need assessments are not subject to open
record[s].” This appeal followed.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant or deny the request. KRS 61.880(1). If it denies
the request, the agency’s response “shall include a statement of the specific exception
authorizing the withholding of the record and a brief explanation of how the exception
applies to the record withheld.” Id. (emphasis added). However, the Center’s response
did not cite an exemption, merely stating that the records “are not subject to open
record[s].” Accordingly, the Center violated the Act because its initial response failed
to comply with KRS 61.880(1).
On appeal, the Center now states that it does not possess a copy of the
Appellant’s most recent risk and needs assessment.1 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
1
Rather, the Center states the record is most likely in the possession of the Kentucky Parole Board.
See KRS 61.872(4) (“If the person to whom the application is directed does not have custody or control
of the public record requested, that person shall notify the applicant and shall furnish the name and
location of the official custodian of the agency’s public records.”).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 Center possesses
his most recent risk and needs assessment. Accordingly, the Center did not violate
the Act when it did not provide it.2
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
#222
Distributed to:
Donald R. Phillips #149748
Kristy Hale
Daniel Akers
G. Edward Henry, II
2
Because the Center has explained that it does not possess the requested record, it is not necessary
to address its arguments that the record is exempt under KRS 439.510 or as a request for information.