21-ORD-039
March 1, 2021
In re: Lawrence Trageser/Personnel Cabinet
Summary: The Personnel Cabinet (“Cabinet”) did not violate the
Open Records Act (“the Act”) when it did not provide records that
do not exist in its possession.
Open Records Decision
On January 24, 2021, Lawrence Trageser (“Appellant”) asked the
Cabinet to provide records relating to a former Kentucky State Police (“KSP”)
Commissioner.
Specifically,
the
Appellant
requested
the
former
commissioner’s personnel file and records related to a sexual harassment
complaint that had been filed against him and the subsequent investigation.
The Cabinet provided the former commissioner’s personnel file but stated that
it did not possess any records relating to the complaint or investigation.1 This
appeal followed.
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 argues that the
Cabinet should have “complaints, reprimands, disciplinary actions, [and]
internal investigations” relating to the former commissioner because those
documents are mentioned in 02-ORD-231. In fact, however, 02-ORD-231 states
1
Pursuant to KRS 61.872(4), the Cabinet directed the Appellant to the Justice Cabinet
and KSP as possible custodians of those records.that “formal charges were never leveled against” the former commissioner
because he resigned while the grievance in question was pending.2 Therefore,
the Appellant has not made a prima facie case that KSP issued any reprimand
or took disciplinary action against the former commissioner.
The Appellant has not presented a prima facie case that complaints,
investigations, reprimands, or disciplinary actions for the former commissioner
exist or should exist in the Cabinet’s possession. Thus, the Cabinet did not
violate the Act when it denied 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/ James M. Herrick
James M. Herrick
Assistant Attorney General
2
Under KRS 18A.020(2)(a), the Cabinet must maintain an official personnel file for each
state employee. The Cabinet’s records retention schedule states that the personnel file should
contain “disciplinary actions” along with “the complete record and supporting documentation
for each personnel action,” as well as written reprimands. See Personnel Cabinet, Records
Retention
Schedule,
“Master
Personnel
Folder,”
Series
04522,
available
at
https://kdla.ky.gov/records/recretentionschedules/Documents/State%20Rec…
/kypersonnelcabinet.PDF (last accessed Feb. 25, 2021). However, because the former
commissioner was not subjected to a disciplinary action or a written reprimand, there is no
documentation relating to any such action. Furthermore, the records retention schedule
provides that the personnel file “should not include . . . grievances (unless the grievance
supports an employment action.” (Id.) Because the former commissioner resigned, KSP took
no employment action against him. Therefore, according to the applicable records retention
schedule and the Cabinet’s statements, the grievance Appellant seeks does not exist in the
Cabinet’s records.#41
Distributed to:
Mr. Lawrence Trageser
Gordon A. Rowe, Jr., Esq.