23-ORD-038
February 20, 2023
In re: Alan Rubin / Louisville Metro Government
Summary: Because the requester has made a prima facie case that a
public record should exist, Louisville Metro Government (“Metro”)
violated the Open Records Act (“the Act”) when it failed to explain the
adequacy of its search for the record.
Open Records Decision
Alan Rubin (“the Appellant”) submitted a request to Louisville Metro
Government to inspect various records, including a letter written in 2008 by a specific
Metro employee in relation to a zoning case. Metro provided records responsive to
portions of his request, but it did not provide the 2008 letter. The Appellant then
initiated this appeal, claiming Metro did not provide all responsive records.
After the appeal was initiated, Metro provided additional responsive records.
However, Metro again stated the 2008 letter does not exist. 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, to make a prima facie case the requested record exists, the Appellant
provided a comment log from a 2008 zoning violation investigation in which an
employee of Metro stated she was in the process of writing a letter that matches the
Appellant’s description. The comment log does not, however, note whether such a
letter was ever finalized or sent. According to the same log, the investigation endedapproximately six months later. Whether the letter was actually finalized or sent is
a question of fact this Office is unable to adjudicate. See, e.g., 22-ORD-159 n.2. But
the Appellant has presented sufficient evidence to suggest the 2008 letter should
exist, given the employee memorialized her intent to create such a record. Cf. KRE
803(3) (excluding from the rule against hearsay a statement of the declarant’s mental
state, including intent to take action). As such, the burden shifts to Metro to explain
the adequacy of its search, which it has failed to do.
An adequate search for records is one using methods reasonably designed to
find responsive records. See, e.g., 95-ORD-096. Reasonable search methods include
reviewing the files pertaining to the general subject matter of the request, and the
files of employees either specifically mentioned in the request or whose job duties are
related to the subject matter of the request. See, e.g., 19-ORD-198. To carry its burden
that its search was adequate, an agency must, at a minimum, specifically describe
the types of files or identify the employees’ whose files were searched. See id. But
here, Metro states only that “several searches were conducted to locate the record
[the Appellant] describes and no responsive record was found.” Metro did not describe
the files it searched or identify which employees’ files were searched. Just as a
requester cannot make a prima facie case that records do or should exist merely by
asserting they do, an agency cannot meet its burden that its search was adequate
merely by asserting it searched for records.
At bottom, this Office cannot find that the requested 2008 letter does, in fact,
exist. Adjudicating such factual questions is beyond this Office’s purview under KRS
61.880(2). The Office can, however, determine whether a requester has made a prima
facie case that a record should exist. And once such a showing is made, the agency is
called upon to explain the adequacy of its search. City of Fort Thomas, 406 S.W.3d at
848 n.3. Because the Appellant presented evidence the requested letter should exist,
Metro was required to describe the methods it used to search for it. By merely
asserting it searched several times, Metro has not carried its burden that its search
was adequate. For that reason, it violated the Act.
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 emailed to OAGAppeals@ky.gov.Daniel Cameron
Attorney General
s/Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#033
Distributed to:
Alan S. Rubin
Alice Lyon
DeAndrea Baltimore
Natalie S. Johnson