23-ORD-309
November 14, 2023
In re: Vivian Miles/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it did not provide records that do not exist.
KSP also did not violate the Act when it denied a portion of the request
that sought information without describing public records to be
inspected.
Open Records Decision
Vivian Miles (“Appellant”) submitted a request to KSP seeking: (1) records
“identifying” the “date” the state DNA database was moved or copied to the “private
data-basing [sic] Ande FAIRS Software”; (2) the number of “investigative leads or hits
from [the] copied database”; and (3) the number of “trained non-technical operators”
who “have used Ande Rapid DNA, A-Chips and those [sic] locations.” KSP stated it
possessed no records responsive to the first request, and it denied the second and
third requests as requests for information rather than requests to inspect public
records. This appeal followed.
On appeal, KSP explains it searched for a record that identifies the date the
state DNA database was moved or copied to the “private data-basing Ande FAIRS
Software,” but no such record exists. 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 makes 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).The Appellant attached several records to her original request which she
asserts “show that there should be a date (record) for when the state DNA Database
was mirrored-copied [sic] to FAIRS.” However, the records the Appellant attached
only support the existence of the FAIRS software. The records do not establish a
prima facie case that KSP possesses a record identifying the date the state DNA
Database was “copied to FAIRS.” Therefore, KSP did not violate the Act when it did
not provide records responsive to this portion of the Appellant’s request.
KSP also maintains the second and third requests “pertained to information”
and KSP is not “obligate[d] to honor a request for information.” The second request
sought the number of certain investigative leads or hits and the third request sought
the number of certain operators and the locations of those operators. These requests
do not describe public records to be inspected, but rather, seek information. See, e.g.,
21-ORD-014 (holding an agency properly denied a request seeking “the total number”
of unemployment claims filed). The Act does not require public agencies to fulfill
requests
for information,
but
only
requests
for
describable
public
records. KRS 61.872; Dep’t of Revenue v. Eifler, 436 S.W.3d 530, 534 (Ky. App.
2013) (“The ORA does not dictate that public agencies must gather and
supply information not regularly kept as part of its records.”). Accordingly, KSP did
not violate the Act when it denied the second and third parts of the Appellant’s
request because they sought information without describing public records to be
inspected.
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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#472
Distributed to:Vivian Miles
Samantha A. Bevins
Stephanie Dawson
Abbey Hub