24-ORD-017
January 22, 2024
In re: Michael R. Carter/Board of Cosmetology
Summary: The Board of Cosmetology (“Board”) did not violate the Open
Records Act (“the Act”) when it did not provide records that do not exist.
Open Records Decision
Michael R. Carter (“Appellant”) submitted a request seeking a copy of all
records created between January 1, 2020, and November 10, 2023, in the Board’s
“fleet folder located in the human resources desk at the Board.” He also sought any
records that identify the drivers of specific vehicles. The Board provided documents
located in “the location identified by” the Appellant and additional electronic records
it believed were responsive to the request.1 This appeal followed.
On appeal, the Board maintains that it has provided the Appellant with all
records responsive to his request, “including those found in the referenced folder.”
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 asserts that he “was given information as to the existence
of this file,” that he has a “valid reason to believe that the [Board] is being selective
of what they produce,” and that the file should include signed documents showing
1
The Board redacted parts of the records under KRS 61.878(1)(a). The Appellant has not challenged
the redactions the Board made. Rather, he asserts only that the Board possesses additional records.which employees were assigned vehicles for completing their works tasks. But merely
asserting that additional records exist does not establish a prima facie case that they
do.2 See, e.g., 23-ORD-294; 23-ORD-042. Therefore, the Board did not violate the Act
when it provided all records in its possession that were responsive to the request.
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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#566
Distributed to:
Michael R. Carter
Julie M. Campbell
Christopher D. Hunt
2
Further, even if a requester makes a prima facie case that additional records may or should exist,
the Office cannot conclude that the records do, in fact, exist. Rather, the Office has long held it cannot
resolve factual disputes about whether all records responsive to a request have been provided, or
whether
requested
records
should
contain
additional
content. See,
e.g.,
23-ORD-027; 22-ORD-010; 19-ORD-083; 03-ORD-061; OAG 89-81.