23-ORD-246
September 15, 2023
In re: Janet Farrow/City of Vanceburg
Summary: The City of Vanceburg (“the City”) violated the Open
Records Act (“the Act”) when it failed to respond to a request to inspect
public records within five business days. However, the City did not
violate the Act when it denied a request for records it did not possess at
the time the request was made.
Open Records Decision
On June 23, 2023, Janet Farrow (the “Appellant”) submitted a request to the
City for “the names and contact information” of the members of the City’s Board of
Ethics and “documentation showing when they were appointed and their designated
term limits.” On July 5, 2023, the City responded and stated it did not possess any
responsive records. Then, on July 11, 2023, the Appellant submitted a second request
to the City for a copy the Mayor’s “Statement of Financial Interest” that was required
to be filed pursuant to local ordinance. Having received no response to her second
request by August 13, 2023, the Appellant initiated this appeal.
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.” KRS 61.880(1). Here, the
Appellant provides proof the City received her first request on June 27, 2023. As such,
the City’s response was timely issued five business days later, on July 5, 2023.
However, the City admits it failed to respond timely to the Appellant’s second request.
Accordingly, it violated the Act.In its responses to both requests, the City claimed not to possess any
responsive records. 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). A
requester can make a prima facie case that responsive records should exist by citing
to legal authority requiring an agency to create the requested document. See, e.g., 21-
ORD-177; 11-ORD-074.
Here, the Appellant has made a prima facie case that responsive records
should exist by citing City of Vanceburg Ordinance No. 230.01,1 which establishes
the City’s ethics code and requires the appointment of members to a Board of Ethics.
Section 13 of that ordinance also requires all elected officials, including the Mayor, to
file a financial disclosure form “with the Board of Ethics.” Section 14 further requires
each elected official to file their annual financial disclosure each year before the first
Monday in February.
In response, the City claims no Board of Ethics existed at the time of the
Appellant’s request, which is a fact the Appellant does not dispute. As such, the City
did not possess records related to the appointment of members at the time the
Appellant made her first request. The City states it now has a Board of Ethics because
members were appointed at its meeting on July 5, 2023, after the City responded to
the request. Moreover, the only records reflecting the appointment of those members
were the minutes of its July 5 meeting, which were not approved until its next
meeting on August 7, 2023. Finally, because the Board of Ethics was not established
until shortly before the Appellant’s second request on July 11, no such Board existed
on the first Monday in February when the Mayor’s financial statement was due to be
submitted. As such, the City has adequately explained why records responsive to the
request do not exist, notwithstanding the ordinance that requires such records to be
created. See Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011) (when it is
determined an agency should have responsive records but does not, the requester is
entitled to a written explanation for their nonexistence). As such, the Office cannot
find the City violated the Act when it denied a request for records that do not exist.
1
Available at https://kydlgweb.ky.gov/Documents/Legal/Ethics/489.pdf (last accessed Sept. 15,
2023).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
#371
Distributed to:
Janet Farrow
R. Stephen McGinnis