23-ORD-142
June 22, 2023
In re: John Beam/Office of the Attorney General
Summary: The Office of the Attorney General (“the Office”) did not
violate the Open Records Act (“the Act”) when it could not provide
records that are not within its custody or control.
Open Records Decision
On May 16, 2023, John Beam (“Appellant”) requested the Office provide “all
recordings and transcripts of 911 calls, Computer-aided dispatch systems, Body-worn
cameras, [and] Dash cameras, relating to an incident on” July 7, 2020, between the
Appellant and certain officers of the Shepherdsville Police Department (“the
Department”) and the Bullitt County Sheriff’s Office (“the Sheriff’s Office”), as well
as “[a]ll documentation filed by [the officers] on the use of force by arresting officer or
those witnessing use of force” in that incident. In a timely response, the Office stated
it was “not the custodian of investigatory records maintained by” the Department or
the Sheriff’s Office, but those agencies might possess records responsive to the
Appellant’s request.1 The Office provided URL links to the open records pages of both
agencies’ websites. This appeal followed.
A public agency “is responsible only for those records within its own custody or
control.” City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 856 (Ky. 2013)
(citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980)).
Once a public agency states affirmatively that a record is not within its custody or
control, the burden shifts to the requester to present a prima facie case that the
requested record exists. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172
S.W.3d 333, 341 (Ky. 2005). Here, the Appellant merely claims “they [the Office] are
1
See KRS 61.872(4) (“If the person to whom the application is directed does not have custody or
control of the public record requested, that person shall notify the applicant and shall furnish the name
and location of the official custodian of the agency’s public records.”).the custodians of these records and they [sic] only ones responsible for their retention
or destruction.” But a requester’s bare assertion that an agency must possess
requested records is insufficient to establish a prima facie case that the agency
actually possesses such records. See, e.g., 22-ORD-040. Rather, to present a prima
facie case that the Office possesses or should possess the requested records, the
Appellant must provide some statute, regulation, or factual support for his
contention. See, e.g., 21-ORD-177; 11-ORD-074. Therefore, the Appellant has not
presented a prima facie case that the Office possesses any of the requested records.
Thus, the Office did not violate the Act when it did not provide records that are not
within its custody or control, or when it provided the contact information for the
records custodians of two agencies that may possess the requested records.
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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#214
Distributed to:
John E. Beam
Nicholas J. Hunt
Jacob P. Ford