21-ORD-038
March 1, 2021
In re: Lawrence Trageser/Kentucky State Police
Summary: The Kentucky State Police (KSP) did not violate the
Open Records Act (“the Act”) when it denied a request for records
that no longer exist.
Open Records Decision
Lawrence Trageser (“Appellant”) requested from KSP a copy of a former
Commissioner’s personnel file. The Appellant also sought a copy of a sexual
harassment investigation file based upon a report of sexual harassment
against the Commissioner in the late 1990s to early 2000s. KSP denied the
Appellant’s request for these records because they do not exist in the agency’s
possession.
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 requested records do exist. Bowling v. Lexington-Fayette Urban
Cty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here, the Appellant provides a
decision from this Office, rendered in 2002, in which the Office held that this
particular sexual harassment investigation file was subject to public
inspection. See 02-ORD-231. According to the Appellant, this proves that the
sexual harassment investigation occurred and records were created in
connection with that investigation.Although the Appellant has made a prima facie showing that responsive
records may have existed in 2002, more than eighteen years have elpased since
that decision. In both its response to the Appellant and on appeal, KSP claims
that the responsive records were likely destroyed in the course of normal
business and in conformity with KSP’s record retention schedule. Under that
records retention schedule, the longest any of the responsive records would
have been retained would have been ten years.
KSP conducted a good faith search for responsive records. However, it
has concluded that no records responsive to the Appellant’s request exist in its
possession. KSP believes the records were destroyed, and the applicable
records retention schedule supports this belief. Therefore, KSP did not violate
the Act in denying the Appellant’s request.
A party aggrieved by this decision may appeal it by initiating action in
the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
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.
Daniel Cameron
Attorney General
/s/Marc Manley
Marc Manley
Assistant Attorney General
#40
Distributed to:
Lawrence Trageser
Michelle D. Harrison