23-ORD-208
August 11, 2023
In re: Rebecca Mash/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it provided all records in its custody or
control that were responsive to a request.
Open Records Decision
On June 7, 2023, Rebecca Mash (“Appellant”) requested copies of “any and all
records associated with” a narcotics investigation conducted in London, Kentucky,
“and the surrounding areas that began possibly during the fall months of 1981,
possibly November or before.” The Appellant also named seven “defendants involved
in this case.” In a timely response, KSP provided 27 pages of records it retrieved from
archives related to a 1982 case investigated by its London post.1 After receiving the
records, the Appellant stated she was “confident there must be more records.” KSP
then conducted another search using the names of the offenders the Appellant
provided and concluded there were no additional records. After an additional inquiry
from the Appellant, KSP conducted a third criminal history search and informed the
Appellant there were no additional records responsive to her request. This appeal
followed.
Once a public agency states affirmatively that it does not possess any
additional records, the burden shifts to the requester to present a prima facie case
that additional records do exist. See Bowling v. Lexington-Fayette Urban Cnty. Gov’t,
172 S.W.3d 333, 341 (Ky. 2005). If the requester establishes a prima facie case that
additional records do or should exist, “then the agency may also be called upon to
prove that its search was adequate.” City of Ft. Thomas v. Cincinnati Enquirer, 406
1
In reliance on KRS 61.878(1)(a), KSP redacted personal information including Social Security
numbers, addresses, and telephone numbers. The Appellant does not question these redactions on
appeal.S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling, 172 S.W.3d at 341). To support a
claim that the agency possesses responsive records that it did not provide, the
Appellant must produce some evidence that calls into doubt the adequacy of the
agency’s search. See, e.g., 95-ORD-96. Here, the Appellant provides what purports to
be a page of testimony from an FBI agent claiming that KSP “had been conducting a
surveillance type investigation for several weeks prior to” November 20, 1981. This,
however, does not constitute prima facie evidence that KSP possesses any more
records than it has provided to the Appellant.2 Because KSP provided all responsive
records in its custody or control, it 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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#312
Distributed to:
Ms. Rebecca Mash
Michelle D. Harrison, Esq.
Ms. Stephanie Dawson
Ms. Abbey Hub
2
Indeed, in her appeal letter, the Appellant states she “now believe[s]” the records she is seeking
“never existed.” She further claims her “appeal is not to look for records that aren’t there,” but to have
the Attorney General “initiate an investigation [of a] corrupt prosecutor.” Although the Office is
empowered to conduct criminal investigations, such an investigation is beyond the scope of the Office’s
review under KRS 61.880(2).