25-ORD-009
January 9, 2025
In re: Jason Webb/Luther Luckett Correctional Complex
Summary: An agency bears the burden of demonstrating that a
requester withdrew his or her request prior to the expiration of the
agency’s deadline to respond to the request. The Luther Luckett
Correctional Complex (“the Complex”) did not sustain its burden of proof
that the request was withdrawn, and therefore violated the Open
Records Act (“the Act”) by not providing a written response stating
whether the request would be granted within five business days.
Open Records Decision
Inmate Jason Webb (“the Appellant”) submitted a request to the Complex
seeking “his trial sentencing plea agreement” for a specified criminal case. In
response, the Complex provided a written response stating that the request had been
“closed out at inmate’s request.” This appeal followed.1
On appeal, the Complex asserts that, before the fifth business day after its
receipt of the request, it verbally informed the Appellant that it did not possess the
record he requested, that the requested record was in the possession of the Jefferson
Circuit Court, and that it could produce a copy of the inmate’s “final judgment.” The
Complex states that, in response, the “Appellant stated that he wished to ‘close out,’”
1
The Appellant also sought to appeal the Complex’s response to three other requests. The first two
requests were submitted to the Complex on August 26, 2024, and October 8, 2024, respectively. The
Complex responded on August 26, 2024, and October 14, 2024, respectively. Under KRS
197.025(3), “all persons confined in a penal facility shall challenge any denial of an open record
[request] with the Attorney General by mailing or otherwise sending the appropriate documents to the
Attorney General within twenty (20) days of the denial.” The Appellant submitted his appeal to the
Office on December 2, 2024, as reflected by the postmark of his appeal. Thus, the Appellant’s appeals
from the Complex’s responses to his August 26 and October 8 requests are time-barred under KRS
197.025(3). The Appellant also sought to appeal a third request, dated November 21, 2024. However,
the Appellant did not provide a copy of the Agency’s written response to that request. Thus, the Office
lacks jurisdiction to issue a decision regarding the Appellant’s November 21 request. See
KRS 61.880(2)(a).or withdraw, his request. For his part, the Appellant denies withdrawing his request
during that conversation.
The Act does not provide a formal mechanism by which a requester may
withdraw his or her request once the request is made. However, the Act generally
requires requesters and agencies to communicate in writing. A requester must submit
a “written application . . . describing the records to be inspected. KRS 61.872(2)(a)
(emphasis added). The responding agency “shall notify in writing the person making
the request . . . of its decision” within five business days. KRS 61.880(1) (emphasis
added). Moreover, the Act places the burden of proof in sustaining the agency’s action
on the agency. KRS 61.880(2)(c). Assuming both that a requester may withdraw his
or her request once it is made, and that a withdrawal of a request excuses the agency
from its obligation to respond further under KRS 61.880(1)—propositions with which
neither party disagrees—the ultimate question in this appeal is whether the Complex
has sustained its burden of proof that the Appellant withdrew his request.
Here, the Appellant has produced a copy of his written request to the Complex
for records. The Complex’s response recites that the Appellant orally withdrew his
request, and it asserts on appeal that it was therefore no longer required to respond
to the Appellant’s request at that point. The Complex’s only proof that the Appellant
withdrew his request is its own record memorializing the Appellant’s oral statement;
it otherwise has produced no documentation of the withdrawal, such as a writing
signed or initialed by the Appellant. Further, on appeal, the Appellant denies that he
ever withdrew his request for records.
It is “the basic policy of [the Act] that free and open examination of public
records is in the public interest.” KRS 61.871. The Act therefore tilts in favor of
requiring a public agency to produce records upon request. To that end, the General
Assembly has required that “the exceptions provided for by KRS 61.878 or otherwise
provided by law shall be strictly construed.” Id. (emphasis added).2 The public policy
embodied in the Act would be frustrated if an agency could be excused from producing
records simply by baldly asserting that a requester withdrew his or her request,
without further proof. It follows that, in order for an agency to sustain its burden of
proof that a request has been withdrawn and that it was no longer required to respond
to the request, the agency must provide some documentation of the withdrawal
beyond its mere say-so.3 Accordingly, the Complex has not met its burden here to
prove the Appellant withdrew his request. The Complex therefore violated the Act by
2
The Office assumes, without deciding, that a valid withdrawal of a request is an exception
“provided by law” permitting an agency not to comply with the Act.
3
Clearly, a written communication from the requester would suffice. The agency could also ask the
requester to sign or initial a form created by the agency for this purpose. Without deciding, there may
also be other ways the agency could sustain its burden of proof.failing to provide a written response to the request within five business days stating
that it does not possess the record requested by the Appellant.
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
#503
Distributed to:
Jason Webb#329423
Michelle Harrison, Executive Advisor, Justice and Public Safety Cabinet
Renee Day, Paralegal, Justice and Public Safety Cabinet
Ann Smith, Executive Staff Advisor, Justice and Public Safety Cabinet