26-ORD-179 – Larry Stambaugh/Southeast State Correctional Complex

Opinion Content:

April 24, 2026

In re: Larry Stambaugh/Southeast State Correctional Complex

Summary: The Southeast State Correctional Complex (“the Complex”)
did not violate the Open Records Act (“the Act”) when it denied a request
for records that are not “public records” within the meaning of
KRS 61.870(2).

Open Records Decision

Inmate Larry Stambaugh (“the Appellant”) submitted a request to the
Complex for his “phone calls recorder [sic] from January 2021 to May 2021” and an
“actual copy” of the conversation between the Appellant and his uncle. In a timely
response, the Complex denied the request on the grounds that the Appellant’s “phone
call log [does] not exist because it is not retained by the” Kentucky Department of
Corrections (“the Department”), but “if this record does exist Securus [Technologies]
would be the custodian of those records.” The Complex provided an address for
Securus, a contract vendor that provides inmate communication and entertainment
services for the Department. This appeal followed.

The Act defines “public record” as “all books, papers, maps, photographs, cards,
tapes, discs, diskettes, recordings, software, or other documentation regardless of
physical form or characteristics, which are prepared, owned, used, in the possession
of or retained by a public agency.” KRS 61.870(2). On appeal, the Complex argues
that the requested records are not prepared, owned, used, in the possession of, or
retained by the Complex or the Department, although the Complex contractually “has
access to [such] records in case they are needed for investigative purposes.” As
evidence, the Complex quotes Section 50.34 of the Department’s agreement with
Securus, which provides: “For the purpose of aiding in investigations, Securus must
retain [inmate telephone system] account information pertaining to an inmate and
end-user’s pre-paid account, debit account, trust account, direct bill, and similar
accounts for a period of two (2) years after the expiration/termination of the Contract.
The [Department] shall have access to such account information upon request, to the
extent permissible by law.” The Complex argues the Appellant’s phone account

information is not a “public record” under KRS 61.870(2) because the Department has
never obtained that information from Securus for investigative purposes as
authorized by the contract.

Once a public agency states affirmatively that it does not possess certain
records, the burden shifts to the requester to make a prima facie case that it does
possess them. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333,
341 (Ky. 2005). A requester’s bare assertion that an agency possesses requested
records is insufficient to make a prima facie case that the agency, in fact, possesses
them. See, e.g., 22-ORD-040. Rather, to make a prima facie case that the agency
possesses or should possess the requested records, the requester must provide some
statute, regulation, or factual support for his contention. See, e.g., 21-ORD-177; 11-
ORD-074.

The Appellant claims the Complex or the Department must “retain” the
requested records, because the “Complex has issued over one hundred twenty (120)
Disciplinary Reports for inmates” who have misused telephone accounts in some way.
Additionally, the Appellant claims another inmate once “filed this same Open Records
Request” for his own telephone records and “the request was granted.” However, the
fact that an agency obtained certain records from a contractor in one case is not prima
facie evidence that it obtained similar records in an unrelated case. See, e.g., 26-ORD-
162. Nor is an agency’s hypothetical “right to demand” certain records from a
contractor the same as the agency possessing them. Id. An “agency’s mere ‘access’ to
electronic records, without more, does not make them ‘public records’ for purposes of
the Act.” 23-ORD-344. Rather, under KRS 61.870(2), the agency must in fact prepare,
own, use, possess, or retain the requested records. See generally 20-ORD-109 (noting
“a correctional facility may ‘use’ specific [inmate communications] for some
administrative purpose,” thereby making them public records under the Act). Here,
the Appellant has not shown that to be the case. Accordingly, the Complex did not
violate the Act when it denied the Appellant’s request. 1

A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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].

1 Because the records at issue are not public records under the Act, it is unnecessary to address the
Complex’s alternative argument that the Appellant’s recorded phone calls are exempt from disclosure
as “purely personal” communications under KRS 61.878(1)(s).

Russell Coleman
Attorney General

/s/ James M. Herrick
James M. Herrick
Assistant Attorney General

Larry Stambaugh, #222507
Charles B. Bates, Esq.
Nathan Goens, Esq.
Ms. Sara Talarigo
Ms. Ann Smith