26-ORD-164 – Branson Johnson/Kentucky Department of Corrections

Opinion Content:

April 16, 2026

In re: Branson Johnson/Kentucky Department of Corrections

Summary: The Kentucky Department of Corrections (“the
Department”) did not violate the Open Records Act (“the Act”) when it
did not provide records it does not possess.

Open Records Decision

On February 25, 2026, the Appellant submitted a request to the Department
seeking the “complete payment records for [the] listed case number” including “each
money order.” The Appellant also sought “all documentation within the file of
probation and parole that was located in London KY,” including the “original orders
from parole officer” to “bring money order into office.” Finally, the Appellant
requested “other receipts that w[ere] paid directly to business and turned into and
placed in file.”

In response, the Department explained that it does not possess any records
responsive to the Appellant’s request. Specifically, it explained that it possesses no
records having to do with the case number identified by the Appellant. 1 It further
stated that the Jefferson County Circuit Court Clerk may possess responsive records
and provided contact information for that agency. This appeal followed.

On appeal, the Appellant confirms that his request sought records related to
the identified case number. For its part, the Department maintains that it does not
possess records related to the identified case number in the Appellant’s probation and
parole file. Once a public agency states affirmatively that no further responsive
records exist, the burden shifts to the requester to make a prima facie case that
additional records do exist. See Bowling, 172 S.W.3d at 341. If the requester makes a

1 As an alternative basis for its denial of the Appellant’s request, the Department stated it was
withholding probation and parole file records pursuant to KRS 439.510, incorporated into the Act by
KRS 61.878(1)(l), which forbids the disclosure of “information obtained in the discharge of official duty
by any probation or parole officer.”

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). A
requester must provide some evidence to make a prima facie case that requested
records exist, such as the existence of a statute or regulation requiring the creation
of the requested record or other factual support for the existence of the records. See,
e.g., 21-ORD-177; 11-ORD-074. A requester’s bare assertion that certain records
should exist is insufficient to make a prima facie case that the records actually do
exist. See, e.g., 22-ORD-040.

Here, the Appellant has not attempted to make a prima facie case that the
Department possesses the identified emails. Thus, the Office cannot find that the
Department violated the Act when it did not produce records it does not possess. 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 [email protected].

Russell Coleman
Attorney General

/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General

Branson Johnson, Appellant
Nathan Goens, Assistant General Counsel, Justice and Public Safety Cabinet
Charles Bates, Staff Attorney III, Justice and Public Safety Cabinet
Sara Talarigo, Paralegal, Justice and Public Safety Cabinet
Ann Smith, Executive Staff Advisor, Justice and Public Safety Cabinet

2 Because the Department does not possess any records responsive to the Appellant’s request, the
Office need not determine whether the Department could have withheld any such records under KRS
439.510.