22-ORD-267
December 13, 2022
In re: Tabitha Cox/City of Frankfort
Summary: The City of Frankfort (“the City”) subverted the intent of
the Open Records Act (“the Act”) within the meaning of KRS 61.880(4)
when it would not allow a requester to make copies or take pictures of
records upon inspection.
Open Records Decision
On February 9, 2022, Tabitha Cox (“Appellant”) made a request to the City for
a copy of the Frankfort Police Department’s records concerning a death investigation.
After receiving the records, the Appellant observed that the file did not contain
certain documents she believed to exist and that several discs containing interviews
were mislabeled or were duplicates of other interviews. On May 10, 2022, the
Appellant asked the City if she could conduct an on-site inspection of the file to verify
whether she had received all existing records. The City informed her that if she
inspected the records she would be subject to certain conditions, including that she
would be supervised while viewing the records and she would not be allowed to ask
questions or “take pictures or make copies of the file.” This appeal followed.
The Appellant claims the City failed to provide all of the records that exist, or
should exist, in the Police Department’s file. The City, however, maintains the
Appellant received copies of everything in the file. Once a public agency states
affirmatively that no further records exist, the burden shifts to the requester to
present a prima facie case that additional records exist or should exist. See Bowling
v. Lexington-Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here, the
Appellant merely asserts that other records should exist. The Appellant’s assertion,
without more, is insufficient to establish a prima facie case that additional records
should be contained in the file. See, e.g., 22-ORD-141; 19-ORD-171.22-ORD-266
Page 2
Although the Appellant has not made a prima facie case that additional records
should exist, this fact alone does not mean the City complied with the Act in all of its
particulars. Ordinarily, a person may verify whether additional records exist by
inspecting the file in person. Here, however, the Appellant complains the City
attempted to dissuade her from exercising her right of on-site inspection by imposing
unlawful conditions on her. Under KRS 61.880(4), a person may petition the Attorney
General to review an agency’s action if the “person feels the intent of [the Act] is being
subverted by an agency short of denial of inspection.” With regard to the conditions
the City imposed, the Act does not expressly grant a requester the right to inspect
records while unsupervised, or to ask questions and receive answers about the
contents of public records. However, the Act does provide that “[u]pon inspection, the
applicant shall have the right . . . to obtain copies of all public records not exempted
by the terms of KRS 61.878.” KRS 61.874(1). Thus, this Office has recognized “that
the right to obtain copies is correlative to the right to inspect records.” 07-ORD-252
n.1.
Furthermore, with regard to photographing records, only county clerks have
been granted statutory authority to “establish procedures . . . restricting the use of
devices” to copy public records. KRS 64.019(1). In the absence of such express
authority, a public agency subverts the intent of the Act when it prohibits a requester
from photographing its records with a personal device, unless the agency offers “proof
that the condition of the records . . . was so poor that [the use of the device] risked
damage or alteration to the records.” 20-ORD-013 (quoting 11-ORD-166). On appeal,
the City claims its police files “often contain sensitive originals which must be
protected,” but does not explain whether this means the originals are easily damaged
or that they contain “sensitive” information. Because the City provides no evidence
the records in the police file in question are physically fragile, the City is presumably
arguing that the records contain sensitive information it does not want disseminated.
In an internal email dated May 11, 2022, a City employee indicated that, if the
Appellant were to review the investigative file, “she can’t take pictures or record
anything since it won’t be redacted.” However, the City claims to have provided the
Appellant a complete copy of the requested records. Under KRS 61.880(1), “[a]n
agency response denying, in whole or in part, inspection of any record shall include a
statement of the specific exception authorizing the withholding of the record and a
brief explanation of how the exception applies to the record withheld.” Thus, if a
public agency redacts any portion of a public record, it must state what it redacted
and explain its legal basis for doing so. See, e.g., 22-ORD-260. Here, however, the City
did not note any redactions in its response dated February 15, 2022, nor has it
explained on appeal why it made any redactions. On the contrary, the City claims to22-ORD-266
Page 3
have fully provided the Appellant with all the requested records.1 Accordingly, the
City has given no valid reason why the Appellant should be forbidden to copy or
photograph the records upon inspection.
A public agency has the burden of proof in an appeal under the Act.
KRS 61.880(2)(c). Here, the City has failed to justify the conditions it attempted to
impose with respect to the Appellant obtaining copies or taking photographs of
records. Thus, the City subverted the intent of the Act, within the meaning of
KRS 61.880(4), by imposing those conditions on the Appellant’s inspection of the
requested records.
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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#444
Distributed to:
Ms. Tabitha Cox
Laura Milam Ross, Esq.
Chermie Maxwell, Clerk
1
Furthermore, if the City actually needed to redact material from the records, the proper course
of action would be to prepare a redacted copy for the Appellant to inspect on the premises. See 22-
ORD-170 n.1.