23-ORD-216
August 14, 2023
In re: Bobbie Coleman/Letcher County Clerk
Summary: The Letcher County Clerk (the “Clerk”) violated the Open
Records Act (“the Act”) when he failed to respond to a request for records
within five business days. The Clerk did not violate the Act when he
denied a request for records that do not exist.
Open Records Decision
On May 23, 2023, Bobbie Coleman (“Appellant”) emailed two requests to the
Clerk to inspect various records relating to the May 2023 primary elections.1 In a
timely response, the Clerk denied the Appellant’s request for video surveillance of the
election machines records between 6:00 p.m. on May 16, 2023 to 6:00 p.m. on May 17,
2023, because he “does not have any video surveillance footage of the election
machines used in the May 2023 primary election.” The Clerk did not respond to the
Appellant’s request for the “complete voter sign-in rosters for every precinct,
absentee, early, and election day voters from the May 2023 primary” in “spreadsheet
format (.csv or .xlsx).”
Following additional correspondence regarding the surveillance video, in
which the Clerk amended his response by stating, “After the 30 days is up, [the
Appellant] can come to our county and get with a technician and see how much he
will charge,” the Appellant submitted another request on May 30, 2023, asking for a
copy of any written contract between the Clerk and a vendor to perform video
1
Specifically, the Appellant sought surveillance videos of the election machines from 6:00 p.m. on
May 16, 2023, to 6:00 p.m. on May 17, 2023. The Appellant also sought, “in spreadsheet format (.csv
or .xlsx) [the Clerk’s] complete voter sign-in rosters for every precinct, absentee, early, and election
day voters from the May 2023” primary election.surveillance of the election machines. In a timely response, the Clerk stated no such
contract exists. This appeal followed.
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . after the receipt of
any such request whether to comply with the request and shall notify in writing the
person making the request, within the five (5) day period, of its decision.” Although
the Clerk timely responded to the Appellant’s request for surveillance video, stating
it did not exist, the Clerk failed to address the Appellant’s request for the complete
voter roster for the May 2023 primary election. Accordingly, the Clerk violated the
Act when he failed to issue a response to the Appellant’s request.2
On appeal, the Clerk continues to assert that no contract or surveillance video
matching the Appellant’s description exists. 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.
Under KRS 117.295(1), “[f]or a period of thirty (30) days following any election,
the voting equipment shall remain locked against voting, the ballot boxes containing
all paper ballots shall remain locked, and the voting equipment and ballot boxes shall
be under video surveillance.” Thus, the Appellant has made a prima facie case that
surveillance video of the election equipment should exist. Accordingly, the Clerk must
explain the adequacy of his search, or explain why no responsive record exists. See
Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011). Here, the Clerk explains
that the election equipment was not collected and put into storage until after 6:00
p.m. on May 17, 2023. Accordingly, the surveillance equipment did not start recording
until after the time designated in the Appellant’s request, and no video matching her
description exists. Accordingly, although the Appellant has made a prima facie case
the video should exist, the Clerk has explained why it does not.
2
After the appeal was initiated, the Clerk advised that he had obtained the complete voter roster
from the vendor. However, it is not clear whether the Clerk provided this record to the Appellant.
Other than the Clerk’s failure to respond to this request, the Appellant has not alleged any other issues
with obtaining a copy of this record.In contrast to the surveillance video, the Appellant has not made a prima facie
case that a contract exists between the Clerk and a vendor regarding surveillance
equipment or services in connection with the surveillance. The Clerk continues to
assert no such contract exists. KRS 117.295 does not require the county clerks to use
a third party to conduct surveillance of the election machines for the statutory period.
Accordingly, the Office cannot find that the Clerk violated the Act by denying a
request for a record that does not exist.
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/ Marc Manley
Marc Manley
Assistant Attorney General
#237
Distributed to:
Bobbie Coleman
Winston Meade
Jamie Hatton