24-ORD-149
June 25, 2024
In re: Makeda Charles/Central State Hospital
Summary: The Central State Hospital (“the Hospital”) did not violate
the Open Records Act (“the Act”) when it did not provide records it does
not possess.
Open Records Decision
Makeda Charles1 (“Appellant”) submitted a request, dated April 12, 2024, to
the Hospital seeking a variety of records related to her time as a patient at the
Hospital. Specifically, she sought information about the manufacturers of
medications she received and “a letter about [her] mental health evaluation status.”2
In response, the Hospital stated responsive records “do not exist.” This appeal
followed.3
1
The Office takes notice of its decision in 24-ORD-135 involving another appeal initiated by the
Appellant. Based on the record developed in that appeal, the Office found that the Louisville Regional
Airport Authority did not violate the Act when it denied a request for records because the Appellant
is not a resident of the Commonwealth. The Act only gives a “resident of the Commonwealth” the
statutory right to demand access to public records. KRS 61.872(2)(a). It does not, however, prohibit
nonresidents from obtaining public records. Rather, “[t]he official custodian may require the applicant
to provide a statement in the written application of the manner in which the applicant is a resident of
the Commonwealth under KRS 61.870(10)(a) to (f).” Id. (emphasis added). Here, the Hospital has not
challenged the Appellant’s status as a “resident of the Commonwealth.” Thus, that issue is not properly
before the Office and its decision in 24-ORD-135 is not dispositive here.
2
In her request, the Appellant also sought several other categories of records related to her time as
a patient of the Hospital. In her appeal, the Appellant has not challenged the Hospital’s responses to
those portions of her request.
3
As part of her appeal, the Appellant included an undated request and a request dated April 9,
2024, that sought, among other things, certain “video footage.” To appeal a denial of a request to the
Office, a complaining party must “forward to the Attorney General a copy of the written request and
a copy of the written response denying inspection.” KRS 61.880(2)(a). In her appeal, the Appellant
asserts that the “Hospital is claiming that they have no video footage.” However, the Appellant has
not provided the Office with a copy of a response in which the Hospital claimed it has no video footage.
Thus, the Appellant has not perfected her appeal as to her requests for video footage.On appeal, the Hospital maintains that it does not possess a “letter about [the
Appellant’s] mental health evaluation status” nor does it maintain a record tracking
the manufacturers of medications it administers to each patient. 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
Hospital possesses records responsive to her request. Accordingly, the Hospital did
not violate 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
#262
Distributed to:
Makeda Charles
Vickie D. Walters
Elyssa S. Morris
Peyton Sands