26-ORD-165 – Terrance Miles/Kentucky State Penitentiary

Opinion Content:

April 16, 2026

In re: Terrance Miles/Kentucky State Penitentiary

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

Open Records Decision

On February 21, 2026, the Appellant submitted a request to the Penitentiary
to view (1) his “entire medical file,” (2) emails between Wellpath employees and “any
outside hospital, doctors, etc.,” and (3) “all sick call forms [he] submitted while at” the
Penitentiary between June 14, 2024, and that date of his request. In response, the
Penitentiary denied the Appellant’s request for his entire medical file because it was
“too broad and overly vague,” citing KRS 61.872(2). The Penitentiary denied that
request for emails, stating that Wellpath is not a public agency and its records are
not subject to the Act. And the Penitentiary granted the request for sick call forms.
This appeal followed.

On appeal, the Penitentiary states that it mistakenly denied the Appellant’s
request to view his “entire medical file” and has made it available to him for viewing.
“If the requested documents are made available to the complaining party after a
complaint is made, the Attorney General shall decline to issue a decision in the
matter.” 40 KAR 1:030 § 6. The Appellant has confirmed that the Penitentiary has
made his medical file available for viewing. Therefore, this portion of the appeal is
moot. 1

On appeal, the Penitentiary now states that it undertook a search for all emails
sent to or from Wellpath employees and located no responsive records. Once a public
agency states affirmatively that no further responsive records exist, the burden shifts

1 The Appellant states that he declined to view his medical file, which he says means this portion of
his appeal is not moot. However, because he confirmed that the medical file was “made available” to
him, it is moot.

to the requester to make a prima facie case that additional records do exist. See
Bowling v. Lexington-Fayette Urb. Cnty. Gov’t, 172 S.W.3d at 341. If the requester
makes 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). 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
Penitentiary possesses the identified emails. 2 Thus, the Office cannot find that the
Penitentiary violated the Act when it did not produce 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 [email protected].

Russell Coleman
Attorney General

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

2 Rather, he relies on Burdette v. Commonwealth, 664, S.W.3d 605 (Ky. 2023), which discusses who
is a “state actor” for purposes of a criminal suspect’s Miranda rights.

Terrance Miles #151766 , 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