23-ORD-196
August 1, 2023
In re: Peter Trzop/Nelson County School District
Summary: The Nelson County School District (“the District”) did not
violate the Open Records Act (“the Act”) when it did not provide records
that do not exist.
Open Records Decision
On June 5, 2023, Peter Trzop (“Appellant”) requested “all information, records,
files, or medium [sic] of communication as related to the academic/legal review of [his]
daughter’s academic file,” including records related to her status as Nelson County
High School valedictorian and the changing of a specific grade. In response, the
District provided several records, which it claims “constituted the totality of the
records [it] possessed that were responsive to” the request. On June 15, 2023, the
Appellant emailed the District and its attorney claiming the response was
“incomplete” because it did not include alleged communications with a teacher and
with the District’s attorney. The Appellant then requested the attorney’s billing
statements related to his open records requests. The same day, the Appellant
submitted another request for “any written documentation, communication, notes,
etc. relating to the changing of [his] daughter[’s] grade(s).” In response, the District
stated it was “not in possession of any additional documents responsive to this
request” and had not received any legal bills related to the subject of the request. This
appeal followed.
On appeal, the District states it has subsequently received legal bills related
to the Appellant’s open records requests and has provided those to him. Accordingly,
the portion of this appeal regarding the Appellant’s request for attorney billing
statements related to his open records requests is moot. See 40 KAR 1:030 § 6.
However, the Appellant still claims the District possesses additional records,
including attorney billing statements related to changing his daughter’s grade. Butthe District states no such records exist because legal counsel was not involved in the
grade change. Additionally, the Appellant claims the District possesses a formal
“complaint letter” and communications from a teacher and an administrator, which
was not provided to him. The District, however, denies the existence of any additional
records responsive to the Appellant’s request.
Once a public agency states affirmatively that no additional records exist, the
burden shifts to the requester to present a prima facie case that additional records
do exist. See Bowling v. Lexington-Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky.
2005). A requester must provide some evidence to support a prima facie case that
requested records exist, such as the existence of a statute or regulation requiring the
creation of the requested record, or other factual support for the existence of the
records. See, e.g., 21-ORD-177; 11-ORD-074. A requester’s bare assertion that certain
records should exist is insufficient to establish a prima facie case that the records
actually do exist. See, e.g., 22-ORD-040. Here, the Appellant has not established a
prima facie case that additional records exist. Accordingly, the Office cannot find that
the District violated the Act when it did not provide records that do not exist.
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
#293
Distribution:
Dr. Peter Trzop
Eric G. Farris, Esq.
Mr. Wes Bradley
Ms. Diane Berry