25-ORD-056
March 3, 2025
In re: Phillip Wines/Eastern Kentucky Correctional Complex
Summary: The Eastern Kentucky Correctional Complex (“the
Complex”) did not violate the Open Records Act (“the Act”) when it did
not provide records that it does not possess.
Open Records Decision
Inmate Phillip Wines (“Appellant”) submitted a request to the Complex
seeking U.S. Food and Drug Administration “approval or warnings” related to “the
on[-]label use for all” his medications. In response, the Complex stated that it does
not possess any responsive records. This appeal followed.
On appeal, the Complex maintains that it does not possess records containing
FDA “approval or warnings,” and that when it receives medication, “documentation
listing the potential side effects” is not included. Once a public agency states
affirmatively that it does not possess any responsive records, the burden shifts to the
requester to present a prima facie case that the agency does possess the records. See
Bowling, 172 S.W.3d at 341. If the requester establishes a prima facie case that the
records do or should exist, “then the 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). To support a claim that the
agency possesses responsive records it did not provide, the Appellant must produce
some evidence that calls into doubt the adequacy of the agency’s search. See, e.g., 95-
ORD-96.
Here, the Appellant asserts that federal regulations require drug
manufacturers to “provide ‘medication guides’” and to place approval labels on
prescription medications. But those assertions, even if accurate, relate only to
required actions of third parties. They do not establish a prima facie case that theComplex currently possesses those records. Thus, the Appellant has not made a
prima facie case that the Complex possesses the requested “approval or warnings”
related to his medication. Therefore, the Complex did not violate the Act when it did
not provide them.1
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
#052
Distributed to:
Phillip Hines#205766
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
1
Because the Appellant has not made a prima facie case that the Complex possesses any responsive
records, it is not necessary to address its alternative argument that, even if the Complex did possess
the records, they would be exempt under KRS 197.025(2), which is incorporated into the Act by KRS
61.878(1)(l).