23-ORD-200
August 7, 2023
In re: John Fairley/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it did not provide records that do not exist.
Open Records Decision
Inmate John Fairley (“Appellant”) submitted a request to KSP to inspect
records relating to “chain of custody, video/audio, body cam [footage], all laboratory
evidence, search warrants, [and] witness statements” pertaining to a specific criminal
case. In a timely response, KSP stated it had searched for all responsive records and
located only records responsive to the Appellant’s request for “chain of custody and
laboratory evidence.” KSP granted the Appellant’s request for copies of those records.
The Appellant then initiated this appeal, claiming KSP must possess additional
records.
On appeal, KSP continues to assert that it provided all records it possesses
that are responsive to the Appellant’s request. 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 KSP possesses,
or should possess, additional records responsive to his request. Therefore, KSP is notrequired to explain the adequacy of its search, and it did not violate the Act when it
provided all responsive records it possesses.1
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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
#299
Distributed to:
John Fairley #241698
Michelle Harrison
Stephanie Dawson
Abbey Hub
1
After this appeal was initiated, KSP determined that the Hopkinsville Police Department
conducted the investigation related to the criminal case and that agency is likely the official custodian
of the requested records. 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.”).