23-ORD-082
April 5, 2023
In re: Darrin Hardy/City of Ludlow
Summary: The City of Ludlow (“the City”) did not violate the Open
Records Act (“the Act”) when it did not provide records that do not exist.
Open Records Decision
On March 2, 2023, Darrin Hardy (“Appellant”) submitted a request to the City
to inspect the “first and last name, title, salary, and complaints on all” public officials,
police officers, city employees, the mayor, the fire department, and the public works
department. On March 10, 2023, 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 claims it emailed its response to the Appellant on March 3, 2023.
As proof, the City provides a copy of its response and the email transmitting it, both
of which are dated March 3, 2023. The City’s response included “a document
containing the name, title, and salary for each employee” and provided that
information for the mayor and city council in the body of the response. The City’s
response further stated that no “complaints” exist. Accordingly, this Office cannot
resolve the factual dispute between the parties about whether the City issued theresponse or whether the Appellant received it, and therefore, cannot find that the
City’s response was untimely.
On appeal, the City reaffirms that it does not possess any “complaints.” 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 any
“complaints” 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 emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#116
Distributed to:
Darrin Hardy
Laurie Sparks
Todd McMurtry
Chris Wright