22-ORD-259

22-ORD-259
December 6, 2022
In re: Tony Young/City of Campbellsville
Summary: The City of Campbellsville (“the City”) did not violate the
Open Records Act (“the Act”) when it did not provide records that do not
exist within its possession.
Open Records Decision
On October 26, 2022, Tony Young (“Appellant”) sent a request to the City for a
copy of all correspondence between two specific individuals and the Kentucky State
Police from January 1, 2019 to October 26, 2022. On November 3, 2022, having
received no response from the City, the Appellant initiated this appeal.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain
why. KRS 61.880(1). However, this Office has consistently found that it is unable to
resolve factual disputes between a requester and a public agency, such as whether a
requester received an agency’s response to a request. See 21-ORD-233 (agency
claimed it issued a response but the requester claimed he did not receive it); see also
22-ORD-125 (agency claimed it did not receive the request); 22-ORD-100 (same); 22-
ORD-051 (same); 21-ORD-163(same).
Here, the City provides a copy of its response, dated November 2, 2022, and
claims it mailed this response to the Appellant that day, which was the fifth business
day after the Appellant submitted his request. The City’s response stated it had
searched for responsive records but none exist. Accordingly, this Office cannot resolve
the factual dispute between the parties about whether the City issued the response
or whether the Appellant received it, and therefore cannot find that the City violated
the Act.On appeal, the City reaffirms that it does not possess any responsive records.
Once a public agency states affirmatively that a record does not exist, the burden
shifts to the requester to present a prima facie case that the requested record does or
should 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 the Appellant has not established a prima facie case that responsive
records exist. Therefore, the City did not violate the Act when it did not provide
records it does not possess.
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.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#416
Distributed to:
Tony W. Young
Cary Noe
John Miller