24-ORD-019
January 25, 2024
In re: Vivian Miles/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) violated the Open
Records Act (“the Act”) when it failed to issue a timely response and
failed to respond to a portion of a request. However, KSP did not violate
the Act when it produced all responsive records it possesses.
Open Records Decision
On December 8, 2023, Vivian Miles (“Appellant”) requested inspection of KSP’s
“[r]ecords identifying . . . CJIS Systems and/or NCIC and/or Link User Agreement[s]”
for the Division of Protection and Permanency and “R & C (recruitment-foster) in
DCBS . . . for Years 2017, 2019 and 2020.” In a response dated December 19, 2023,
KSP provided four user agreements, three of which were from 2019 and one from
2020.1 This appeal followed.
When a public agency receives a request to inspect records, that agency must
decide within five business days “whether to comply with the request” and notify the
requester “of its decision.” KRS 61.880(1). Here, KSP failed to respond to the
Appellant’s request within five business days. Furthermore, an agency response
denying inspection of public records must “include a statement of the specific
exception authorizing the withholding of the record and a brief explanation of how
the exception applies to the record withheld.” Id. A public agency cannot simply
ignore portions of a request. See, e.g., 21-ORD-090. If the requested records exist and
an exception applies to deny inspection, the agency must cite the exception and
explain how it applies. Conversely, if the records do not exist, then the agency must
affirmatively state that such records do not exist. See Bowling v. Lexington–Fayette
Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here, KSP failed to respond to the
1
KSP additionally stated that “[t]he Cabinet for Health and Family Services is currently in the
middle of an audit that is not complete, therefore the KSP does not have updated records at this time.”
However, it is not clear why KSP made this statement because the Appellant did not request any
records more recent than the year 2020.Appellant’s request for user agreements from the year 2017. Thus, KSP violated the
Act.
On appeal, KSP affirmatively states it has provided all responsive records in
its possession. 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, 172 S.W.3d at 341. 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 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
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 asserts that all CJIS user agreements must be signed by
the current State Control Terminal Officer (“CSO”) to be valid. However, the
Appellant does not dispute that the 2019 and 2020 agreements KSP provided were
signed by the proper CSO at the time. Nor does the Appellant explain how this
signature requirement proves KSP possesses any other responsive records for 2017,
2019, or 2020. Thus, the Appellant has not established a prima facie case that
additional records exist in KSP’s custody or control. Accordingly, KSP did not
withhold records in violation of 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.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#571
Distribution:Ms. Vivian Miles
Samantha A. Bevins, Esq.
Ms. Stephanie Dawson
Ms. Abbey Hub