23-ORD-350
December 28, 2023
In re: Gerald Chapman/Daviess County Public Library
Summary: The Daviess County Public Library (“the Library”) did not
violate the Open Records Act (“the Act”) when it provided all responsive
records in its custody or control.
Open Records Decision
On November 10, 2023, Gerald Chapman (“Appellant”) requested “[a]ll
communications including but not limited to emails and texts from and between all
current and former [Library] board members, [the Library Director,] and library staff
concerning the Daviess County Citizens for Decency audit, the subsequent book
review, relocation of books and proposed changes.” In response, the Library Director1
provided 16 emails and 34 messages sent via Microsoft Teams. The Appellant then
stated he “believe[d]” there were “additional emails between board members” that
had not been provided, including emails from the current board chair to the Director.
The Director replied that she had provided the Appellant all responsive records to
which she had access, and that she had requested the board members to supply any
additional responsive records in their possession. She advised the Appellant that the
records she provided were “all [she had] been copied on or sent directly.” This appeal
followed.
Once a public agency states affirmatively that it does not possess any
additional records, the burden shifts to the requester to present a prima facie case
that additional records do exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t,
172 S.W.3d 333, 341 (Ky. 2005). If the requester establishes a prima facie case that
additional records do or should exist, “then the agency may also be called upon to
prove that its search was adequate.” City of Ft. Thomas v. Cincinnati Enquirer, 406
1
For purposes of this appeal, it is presumed that the Library Director is the official custodian of
records, or the authorized designee of the official custodian, within the meaning of KRS 61.880(1).S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling, 172 S.W.3d at 341). To support a
claim that the agency possesses responsive records that it did not provide, the
Appellant must produce some evidence that calls into doubt the adequacy of the
agency’s search. See, e.g., 95-ORD-96. Here, the Appellant claims to “know for a fact”
that additional responsive emails exist, but provides no evidence in support of his
claim. The bald assertion that records should exist is not sufficient to establish a
prima facie case that they do exist. See, e.g., 23-ORD-042. Because the Library
provided all responsive records it possesses, it did not violate the Act.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#545
Distributed to:
Mr. Gerald Chapman
Ms. Erin Waller
John Burlew, Esq.