23-ORD-330
December 13, 2023
In re: Mikayla D. Ford/Kentucky Board of Cosmetology
Summary: The Kentucky Board of Cosmetology (“Board”) did not
violate the Open Records Act (“the Act”) when it did not provide records
that either do not exist or were not “precisely describe[d]” in the request.
Open Records Decision
Mikayla Ford (“Appellant”) submitted a request to the Board seeking “minutes
and/or any documentation for board hearings from January 1, 2021 up to October 1,
2023.” In response, the Board provided “all documents that could reasonably be
deduced as responsive to [her] request.” This appeal followed.
The Appellant claims “certain records” she “believe[s] to exist were not
produced.” First, the Appellant states that she was given draft copies of meeting
minutes from the Board’s meetings in 2021 instead of final copies because all minutes
produced for that year contained a “draft” watermark. Second, the Appellant states
the Board did not produce “Board Meeting Agendas” or documents provided to Board
members for any meeting. Finally, she claims minutes should exist, but were not
provided, for meetings that allegedly occurred in August and December 2022, and in
July, August, and September 2023.
Regarding the Board’s meeting minutes from 2021, the Board explains on
appeal that the Appellant was given the final versions, but the person responsible for
creating the minutes had failed to remove the watermarks. The Office has long held
that it cannot resolve factual disputes between the parties to an appeal. See, e.g., 23-
ORD-027; 22-ORD-010; 19-ORD-083; 03-ORD-061; OAG 89-81. Accordingly, the
Office is unable to find that the Board violated the Act when it provided meeting
minutes that it states are final but contain watermarks indicating the records are
drafts.Regarding the Appellant’s assertion that additional meeting minutes should
exist for certain meetings that allegedly occurred in 2002 and 2023, the Board
explained in its original response that it had provided “all documents that could
reasonably be deduced as responsive to [the Appellant’s] request.” 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).
Here, the Appellant attached all meeting minutes that were produced by the
Board. The minutes for each meeting identify the month of the previous meeting and
recite approval of the minutes taken at the previous meeting. The minutes do not
indicate that meetings took place in August 2022 or in July, August, or September
2023, or that minutes were created or approved for such meetings.1 While it is true
that agencies subject to the Open Meetings Act are required to take minutes at every
meeting and approve them at the next meeting, KRS 61.835, the Appellant has not
established a prima facie case that the Board met in August or December 2022, or in
July, August, or September 2023. As such, she has not established a prima facie case
that additional meeting minutes should exist.2
Finally, the Board claims on appeal it did not provide copies of the Board’s
agendas for meetings because it interpreted the Appellant’s request as seeking only
meeting minutes. It is true the Appellant did not specifically identify meeting
agendas in her request. However, the Appellant’s request stated she was seeking
minutes “and/or any documents for Board hearings” during the relevant period. As
such, she clearly sought more records than just meeting minutes. Nevertheless, under
KRS 61.872(3)(b), a person seeking to receive copies of records by mail must “precisely
describe” the records to be inspected. If the Appellant wanted to inspect meeting
agendas, she should have specifically identified that type of record in her request to
the Board. See, e.g., 22-ORD-184 (the agency did not violate the Act by failing to
provide copies of social media posts when a request for all “public statements” did not
specifically identify social media posts as records sought for inspection). Accordingly,
1
The February 2, 2023, meeting minutes indicate the Board approved minutes for its December
2022 meeting. However, the Appellant notes that meeting minutes dated February 7, 2022, may
actually be the minutes for the December 2022 meeting. The Office cannot resolve the factual dispute
about whether the February 7, 2022, minutes are actually the minutes of the December 2022 meeting.
2
Nevertheless, on appeal, the Board conducted an additional search and located minutes for
meetings held in December 2022 and September 2023. Any dispute regarding those minutes is now
moot. See 40 KAR 1:030 § 6. The Board further states no meetings were held in the other months about
which the Appellant complains.the Board did not violate the Act when it did not provide copies of meeting agendas
to the Appellant.
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
#513
Distributed to:
Mikayla D. Ford
Julie M. Campbell
Christopher D. Hunt