22-ORD-235
November 3, 2022
In re: Larry Stallard/Department of Criminal Justice Training
Summary: The Department of Criminal Justice Training (“the
Department”) did not violate the Open Records Act (“the Act”) when it
did not provide records that are not in its possession.
Open Records Decision
Larry Stallard (“the Appellant”) sent multiple requests to the Department to
inspect various records related to the training of coroners. Relevant to this appeal, he
sought copies of training materials used to teach and certify individuals as qualified
to perform “post-mortem examinations” in 2019. He also sought records certifying the
Madison County Coroner and his deputies were authorized to perform “post-mortem
examinations” in 2019. In a timely response, the Department provided 313 records
responsive to the request (including transcripts of the training histories of the
specified coroner and his deputies), but claimed it did not possess training materials
from more recent years.1 The Department explained that much of its training is
conducted by private individuals who do not share their training materials with the
Department. Instead, the Kentucky Association of Coroners screens and approves
trainings that would permit an individual to qualify to perform a post-mortem
examination.
1
The Appellant also complains that the Department provided irrelevant records, such as training
materials from the 1980s. But the Appellant did not specify which years of training materials he
wanted to inspect. Instead, the Appellant specified he was not seeking training materials used in 2019,
but training materials upon which a person would have relied to perform a “post-mortem examination”
in 2019—i.e., training materials from before 2019. A coroner could have relied on his or her training
from the 1980s to conduct an examination in 2019. Thus, the Appellant’s request was broad enough to
include the materials the Department provided.For the next two months, the parties engaged in extensive correspondence
regarding the Department’s response. The Appellant would ask for additional
records, or explain why he thought the Department’s responses were inadequate.
Sometimes the Department would find additional records based upon additional
requests the Appellant made. Throughout this correspondence the Department
continued to assert that private individuals conducted the requested training and the
Department did not possess copies of their training materials. This appeal followed.
On appeal, the Appellant claims the Department should possess copies of the
training materials because it is the agency that certifies coroners have completed the
training. He also claims the Department did not “identify any course or topic within
a course where [the Department] had trained the Madison [C]ounty coroner or deputy
coroners to perform a post-mortem examination.” In response, the Department claims
to have reviewed more than 6,000 records and has provided the Appellant with all
records responsive to his request. The Department continues to assert that private
individuals possess the training materials for coroners.
Once a public agency states affirmatively that a requested record does not exist
in its possession, the burden shifts to the requester to present a prima facie case that
the requested record does exist. See Bowling v. Lexington-Fayette Urb. Cnty. Gov’t,
172 S.W.3d 333, 341 (Ky. 2005). If the requester is able to make a prima facie case
that the records do or should exist, then the public 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).
Here, to make his prima facie case, the Appellant cites to the Department’s
retention policy, which requires certain training materials to be retained for nine
years. He also cites to KRS 72.025, which establishes the circumstances when a
coroner must perform a post-mortem examination. He argues that coroners could not
comply with this statute absent training to perform the examination, and the
Department is the agency tasked with training coroners. The Department has also
provided transcripts of certain coroners and deputies’ training histories, further
indicating that these individuals received training of some kind. However, an
agency’s retention schedule is not prima facie evidence that an agency has actually
created a record. Rather, if the agency has created such a record, then the retention
schedule requires the agency to retain the record according to the schedule. See, e.g.,
10-ORD-187 (coroner did not violate the Act when he chose not to create an “annual
statistics report,” notwithstanding the applicable retention schedule requirement
that such a report be maintained). Moreover, KRS 72.025 does not specify the
training requirements for coroners prior to conducting a post-mortem examination.2
2
The Appellant also cites to KRS 72.405(4), which defines a “post-mortem examination” as “a
physical examination of the body by a medical examiner or by a coroner or deputy coroner who hasEven if the authority upon which the Appellant relies is sufficient to establish
a prima facie case that coroners must receive a particular type of training, the
Department has adequately explained its search and why it does not possess
responsive records. The Department explains it has reviewed over 6,000 records
throughout the two month period in which the parties discussed the Appellant’s
requests. The Department further explains that it does not select the training
programs from coroners. Rather, the Kentucky Association for Coroners screens and
selects training programs offered by private individuals, which the Department
facilitates. The trainers, who wish to protect their proprietary interest in their work
product, do not share their training materials with the Department before giving the
training, and the Department does not demand that they provide copies. Thus, the
Department has adequately explained its search for responsive records and has
explained why certain requested records do not exist in its possession. See Eplion v.
Burchett, 354 S.W.3d 598 (Ky. App. 2011) (noting that if responsive records should
exist and do not, the requester is entitled to a written explanation for their
nonexistence). Accordingly, the Office cannot find that the Department violated the
Act when it did not provide records that do not exist in its possession.3
Regarding the Appellant’s request about the Madison County coroner and his
deputies’ training history, the Department has provided a complete transcript of their
training histories. The Department argues it is not required to review the transcripts
and create a record identifying the courses that qualify as training “to perform a post-
mortem examination.” The Department is correct. “The [Act] does not dictate that
public agencies must gather and supply information not regularly kept as part of its
records.” Dep’t of Revenue v. Eifler, 436 S.W.3d 530, 534 (Ky. App. 2013); see also 22-
ORD-051 (an agency was not required to create an “itemized list” pertaining to a
subject when the agency did not maintain its records according to the subject).
Accordingly, the Department did not violate the Act when it did not create a record
to conform to 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 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 e-mailed to OAGAppeals@ky.gov.
been certified by the” Department. However, this statute does not specify the training requirements
for coroners or explain how they qualify to be “certified” by the Department.
3
The Appellant further argues that, if it is true the Department does not possess copies of the
training materials used by private vendors, then it has unlawfully outsourced its duty to train
coroners. However, the Office cannot consider ancillary questions of law unrelated to the Act in this
forum. See, e.g., 22-ORD-137 (the Office could not decide, in this forum, whether the failure to record
an inmate’s parole hearing constituted a violation of due process).Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#383
Distributed to:
Larry P. Stallard
Robin Cornette
Denna Brockman