23-ORD-136
June 16, 2023
In re: Nicole Henson/Office of Attorney General
Summary: The Office of Attorney General (“the Office”) did not
subvert the intent of the Open Records Act (“the Act”), within the
meaning of KRS 61.880(4), when it provided records it reasonably
believed were responsive to a request.
Open Records Decision
On March 24, 2023, Nicole Henson (“Appellant”) submitted a request
containing four subparts to the Office, seeking copies of various records related to a
matter involving the Office of Special Prosecutions. She challenges the Office’s
response to three of those four subparts.1 First, she sought the “written request” from
the Commonwealth’s Attorney for the Thirteenth Judicial Circuit “to disqualify
himself from the matter his office received on or about September 13, 2021, relating
to possible [sic] EPO violation and fabrication of armory files” involving three named
individuals, at least one of whom is allegedly an officer for the Kentucky State Police
(“KSP”). Second, she sought a copy of any letter the Office issued appointing a special
prosecutor “to the matter” she described in her request. Finally, she sought any
emails, including attachments, “between and among” the Commonwealth’s Attorney
and the Assistant Deputy Attorney General for the Department of Criminal
Litigation between April 1, 2022, and April 30, 2022.
In a timely response, the Office provided two pages of records it deemed
responsive to the first and second part of the Appellant’s request. Those records
documented the Commonwealth’s Attorney’s request for the appointment of a special
1
In the subpart she does not challenge, the Appellant asked for any document or record containing
the email address of the current Director of the Office of Special Prosecutions. Despite this really being
a request for information instead of a record, the Office nevertheless provided the Appellant with the
requested email address.prosecutor, and the Office’s subsequent appointment of one, in a matter relating to
one of the three individuals the Appellant had identified—the KSP officer. However,
those records were created in 2019, not in 2021, which was the date specified in the
request. When it provided these records, the Office specifically informed the
Appellant that they were “dated before” her specified date of September 13, 2021. The
Office did not, however, provide records responsive to the Appellant’s third request
because the Office “determined it does not possess” any responsive records. This
appeal followed.
“If a person feels the intent of [the Act] is being subverted by an agency short
of denial of inspection, including but not limited to the imposition of excessive fees,
delay past the five (5) day period described in [KRS 61.880(1)], excessive extensions
of time, or the misdirection of the applicant, the person may complain in writing to
the Attorney General, and the complaint shall be subject to the same adjudicatory
process as if the record had been denied.” KRS 61.880(4). Here, the Appellant claims
the Office subverted the intent of the Act, within the meaning of KRS 61.880(4), by
providing two pages of records created before the date she specified in the first part
of her request. In response, the Office argues the two pages of records it provided
related to the substance of the Appellant’s request, namely, the Commonwealth’s
Attorney’s request to appoint a special prosecutor in a matter related to the named
KSP officer. The Office notified the Appellant in its original response to her that these
two pages of records did not match the date of her request, but they did match the
general subject matter of it. On appeal, the Office states it does not possess similar
records for the September 2021 date in question.
This Office has previously found that intentionally providing nonresponsive
records may impede the requester’s right of inspection. See, e.g., 12-ORD-017. In cases
where there is absolutely no connection between the records requested and those
provided by the agency, such a finding may be warranted. Of course, it is not clear
how merely providing nonresponsive records amounts to “subversion” as defined
under KRS 61.880(4). Certainly it could amount to the “imposition of excessive fees,”
if an agency charged a fee for copies of nonresponsive records, or it could be
“misdirection” if an agency provided a voluminous amount of nonresponsive records
and slipped within them the actual records requested. But here, the Office did not
charge the Appellant for the two pages she claims were unresponsive. The Office
simply provided her with something that was potentially responsive, because it does
not possess records reflecting both the date and subject matter of her request. As
such, the Office provided free of charge two pages of records matching the subject
matter of the request, if not the date. That does not amount to subversion within the
meaning of KRS 61.880(4).
To the extent the Appellant complains she did not receive records that match
both the date and substance of her request, the Office has affirmatively stated itpossesses no such record. Once a public agency states affirmatively that it does not
possess any responsive records, the burden shifts to the requester to present a prima
facie case that the requested records do exist in the agency’s custody or control. See
Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here,
the Appellant has not made a prima facie case that the Office should possess a letter
from the Commonwealth’s Attorney that is both dated on September 13, 2021, and
reflects his recusal from a matter involving the named KSP officer. All she provides
in support of this claim is an email she sent to the Commonwealth’s Attorney’s
assistant on May 2, 2022, accusing that assistant of not handling appropriately a
package previously sent to the Commonwealth’s Attorney, and the assistant’s
response advising the Appellant that the Commonwealth’s Attorney stated he was
recused from this matter. To the extent such evidence could support a prima facie
case that a letter from September 2021 should exist, it equally supports a prima facie
case that the records the Office provided were the responsive records. That is to say,
the Commonwealth’s Attorney was allegedly recused from a matter involving the
named KSP officer in 2021, and the Office possesses and produced records created in
2019 in which the Commonwealth’s Attorney sought the appointment of a special
prosecutor in connection with investigations into that KSP officer. Simply put, the
Appellant has not presented a prima facie case that records matching both of her
specifications exist.
The Appellant also argues the Office violated the Act by claiming not to possess
emails exchanged between April 1, 2022, and April 30, 2022, “between and among”
the Commonwealth’s Attorney and the Assistant Deputy Attorney General. On
appeal, the Office advises that it has since located the requested email and provided
it to the Appellant. Accordingly, this part of the Appellant’s appeal is moot. See
40 KAR 1:030 § 6 (“If the requested documents are made available to the complaining
party after a complaint is made, the Attorney General shall decline to issue a decision
in the matter.”).
In sum, the Office did not provide the Appellant with a voluminous stack of
nonresponsive records for the purpose of impeding her inspection. Rather, it provided
the only records it possessed that were remotely responsive to her request. The
Appellant has failed to present a prima facie case that records responsive to both the
date and substance of her request exist. Accordingly, the Office did not violate the
Act.
A party aggrieved by this decision may appeal it by initiating an 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/ Marc Manley
Marc Manley
Assistant Attorney General
#152
Distributed to:
Nicole Henson
Jacob Ford