23-ORD-305
November 14, 2023
In re: Eric Cook/Ashland Police Department
Summary: The Ashland Police Department (“the Department”) did not
violate the Open Records Act (“the Act”) when it denied a request for a
record that does not exist.
Open Records Decision
Eric Cook (“Appellant”) submitted a request to the Department for a copy of a
police report he believes a specific person filed against him on September 14 or
September 15, 2023. The incident giving rise to the investigation allegedly happened
in Florida. In a timely response, the Department denied his request because “[n]o
police report was made or filed” by the identified person during the time period
specified in the request. This appeal followed.
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 exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341
(Ky. 2005).
Here, in an attempt to make a prima facie case, the Appellant provides a
document he claims proves the Department took pictures during an investigation
allegedly involving him. The document refers to a “report” where “statements” were
taken by “HR.” However, the Department has already provided the Appellant with a
copy of the referenced “HR” report. The Department also provided him with copies of
“all pictures” it obtained and the “police report from the investigating agency in
Florida.”On appeal, the Department again states that no records responsive to the
Appellant’s request exist within its possession. The Department explains that it took
pictures of the victim’s injury at the request of the victim’s supervisor at an “abuse
shelter” because the shelter has specialty photography equipment. The Department
states those photographs were provided to the Appellant as well as a copy of a police
report filed in Florida that is related to the incident. However, the Department states
the alleged victim never filed a formal complaint against the Appellant regarding the
incident, and therefore, it did not create a police report.
In contrast, the Appellant asserts that the police report he requested must
exist because the Department took photographs related to the incident. However, the
Office has found that a requester’s bare assertion alone is not enough to establish a
prima facie case that a record exists. See, e.g., 23-ORD-262; 23-ORD-217; 23-ORD-
181; 23-ORD-142; 22-ORD-040. Similarly, the Appellant’s bare assertion here does
not establish a prima facie case that the Department created a police report regarding
the incident. Therefore, the Department did not violate the Act when it denied 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/ Matthew Ray
Matthew Ray
Assistant Attorney General
#462
Distributed to:
Eric Cook
Todd Kelley
James H. Moore, III