25-ORD-005
January 7, 2025
In re: Glenn Odom/Oldham County Detention Center
Summary: The Oldham County Detention Center (“the Center”) did not
violate the Open Records Act (“the Act”) when it did not provide records
it does not possess. The Office cannot resolve the factual dispute
regarding when the Center received the Appellant’s request.
Open Records Decision
On October 29, 2024, Glenn Odom (“the Appellant”) submitted a multi-part
request to the Center seeking (1) emails and memos the Kentucky State Penitentiary
(“the Penitentiary”) sent to the Center prior to the Appellant’s arrival at the Center
regarding his “recommended housing area, [his] status, and [his] possible behavior”;
and (2) “emails, notes, letters, [and] memos” from the Center to the Penitentiary
“regarding [his] behavior.”1 In response, on November 14, 2024, the Center stated
that records responsive to subparts 1 and 2 of the request do not exist. This appeal
followed.
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . after the receipt of
any such request whether to comply with the request and shall notify in writing the
person making the request, within the five (5) day period, of its decision” (emphasis
added). Here, the Appellant asserts he sent his request to the Center by U.S. mail on
October 29, 2024, and that he did not receive a response until November 14, 2024. On
appeal, the Center asserts it received the request on November 9, 2024, and timely
responded on November 14, 2024, the third business day following receipt of the
request. The Office has consistently found it is unable to resolve factual disputes
between a requester and a public agency, such as when an agency received a request
to inspect records. See, e.g., 24-ORD-184; 23-ORD-092; 23-ORD-071; 23-ORD-005; 22-
1
The Appellant sought three additional categories of records which were provided and are not at
issue in this appeal.ORD-216; 22-ORD-148; 22-ORD-125; 22-ORD-100; 22-ORD-051; 21-ORD-163.
Therefore, the Office is unable to resolve this factual dispute or find that the Center
violated the Act.
On appeal, the Center affirms that records responsive to subparts 1 and 2 of
the Appellant’s request do 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 is able to make 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 established a prima facie case that additional records
exist. Therefore, the Center 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
#494
Distributed to:
Glenn Odom #219489
Jeff Tindall
Jessica Childers