23-ORD-298
November 6, 2023
In re: Genevia Risner/City of Maysville
Summary: The City of Maysville (“the City”) violated the Open Records
Act (“the Act”) when it conducted an inadequate search for records.
However, the Office cannot find that the City violated the Act when it
denied a request for a record it claims not to possess.
Open Records Decision
On September 27, 2023, Genevia Risner (“Appellant”) submitted a request to
the City for records related to the condemnation of a barn on her property.1 The City
notified the Appellant that the “documents, photos, and audio filed for [her] request”
could be picked up upon payment of a proscribed copying fee. The Appellant then
initiated this appeal, claiming the City failed to include six records she believes
should exist and are responsive to her request.
As an initial matter, the Office notes that it is ordinarily incapable of
adjudicating claims by requesters that agencies possess additional records that have
not been provided. See, e.g., OAG 89-81. The Attorney General is not the custodian of
every public record in the possession of every public agency, and therefore, cannot
make findings of fact that any particular record that has been requested actually
exists. Rather, the Act requires public agencies to conduct adequate searches for
responsive records in good faith. In the absence of evidence that a search was
1
Specifically, the Appellant sought “[d]ocumentation on barn/blacksmith shop at 2027 Old Main St.
Please include documentation specifying the barn as a contributing resource to the Washington
Historic District. Any permit communication and updates to records associated with the structure.
Any recorded meetings that include the structure as a topic on agenda item, specifically dating in
February, March, and September 2023. Please include as well any information discovered in the
records collection process relating to the property/structure.”inadequate, the Attorney General cannot find a violation simply because the
requester did not receive every document she expected she would receive from a
public agency.
This concept, repeated for decades, that the Attorney General cannot
“adjudicate a dispute regarding a disparity, if any, between records for which
inspection has already been permitted, and those sought but not provided,” OAG 89-
81, is similar in nature to disputes arising out of an agency’s claim that no responsive
records exist at all. In those cases, the agency is required to “affirmatively state” no
responsive records exist. See, e.g., 23-ORD-241. Here, however, responsive records
did exist, so the City could not have been expected to “affirmatively state” no
responsive records exist. Instead, the City effectively stated it had provided all
responsive records.
In cases where an agency claims no responsive records exist, the burden shifts
to the requester to present a prima facie case that the requested records do or should
exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky.
2005). Only if the requester makes such a prima facie case will the adequacy of the
agency’s search be called into question. City of Ft. Thomas v. Cincinnati Enquirer,
406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling, 172 S.W.3d at 341). It therefore
stands to reason that when a requester claims additional records should exist, she
carries the burden to present a prima facie case that additional records do or should
exist. See, e.g., 23-ORD-259 (requester presented a prima facie case additional records
should exist).
Here, the City essentially admits its initial search was inadequate because,
after it received notice of this appeal, it “found additional documents” and provided
them to the Appellant. The additional records are responsive to five of the six types
of records the Appellant claimed were not included in the City’s first response.
Ordinarily, the Office would consider an appeal moot after the City’s acknowledgment
of its failure to conduct an adequate search for these five records because, under 40
KAR 1:030 § 6, “[i]f the requested documents are made available to the complaining
party after the complaint is made, the Attorney General shall decline to issue a
decision in the matter.” However, with respect to one of those five records, a specific
email, the City admits it “overlooked” the email but nevertheless did not provide an
additional copy to the Appellant because she already possessed it and attached it to
her appeal. And because the City did not make that requested record available to the
Appellant after the appeal was initiated, the Office cannot consider that portion of
the appeal to be moot. As such, the Appellant has made a prima facie case that theCity’s initial search was inadequate, the City has not rebutted that prima facie case
or mooted the claim, and therefore, the Office finds the City violated the Act.
The Appellant describes the sixth additional record she believes exists, but
which the City has not located after the appeal was initiated, as follows: “In the 2011
condemnation order, live and dead loads are listed as criterion under specific
violation. In records received no calculations, during any point are included. This
information was not presented as part of the most recent motion to demolish either,
though indicated as pertinent violations.” Attached to the Appellant’s appeal is a copy
of the 2011 condemnation order, which states in relevant part that the barn was
allegedly in violation of Section 304.4 of the relevant building code, which allegedly
states, “All structural members shall be maintained free from deterioration, and shall
be capable of supporting the imposed dead and live load.” In response, the City states
that “no document was found for” the address of the barn “explaining live and dead
loads.”
The Appellant has presented a prima facie case that documentation supporting
a finding that her barn could not support the “imposed dead and live load” should
exist because she was cited for the alleged inability of her barn to meet that
requirement. If, as the City claims, no responsive records exist, then it would call into
question the basis for that particular finding in the condemnation order. As stated
previously, the Attorney General is incapable of finding that a particular public
record does, in fact, exist. Rather, the Office can only require the City to explain the
adequacy of its search, and here the City claims to have searched all records related
to the condemnation of the barn but cannot locate evidence to support this finding in
its condemnation order. As such, the Office cannot find that the City failed to conduct
an adequate search for records supporting the City’s allegation that the Appellant’s
barn cannot support the “imposed dead and live loads.”
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/ Matthew Ray
Matthew Ray
Assistant Attorney General
#450
Distributed to:
Genevia Risner
Lisa R. Dunbar
Kelly Caudill
Debra L. Cotterill