24-ORD-023
January 29, 2024
In re: David Bricarello/Franklin County Fiscal Court
Summary: The Office cannot find that the Franklin County Fiscal
Court (“the Fiscal Court”) violated the Open Records Act (“the Act”)
when it claims to have provided all responsive records it possesses.
Open Records Decision
David Bricarello (“Appellant”) submitted a request to the Fiscal Court for
telephone records “for the last year” relating to the telephone an officer used on
October 31, 2023, while “on call at” the Appellant’s property. In a timely response,
the Fiscal Court granted the Appellant’s request and provided responsive records
related to the officer’s use of his telephone. After receiving the records, the Appellant
asked the Fiscal Court why the records did not contain any calls received on October
31, 2023. “After talking with staff,” the Fiscal Court determined that the officer was
using a different telephone on October 31, 2023. The Fiscal Court then provided the
Appellant with all responsive records related to the second telephone.1 The Appellant
then initiated this appeal, claiming the Fiscal Court must possess additional records
responsive to his request. Specifically, the Appellant claims the records he received
should document the officer having received an incoming call on October 31, 2023,
but they do not.2
1
The Fiscal Court states the officer was “filling in for [an] Animal Control Officer” on October 31,
2023, and the responsive records reflect “a call lasting 17 minutes beginning at 8:28 PM on” that day.
The Fiscal Court states it also confirmed with the officer that he was using the second telephone,
presumably a telephone belonging to Animal Control, on October 31, 2023. Neither party has provided
a copy of the records the Appellant received, but the Appellant claims the call on October 31, 2023,
was an outgoing call. The Appellant initiated this appeal because he believes there should have been
an incoming call to the telephone in question.
2
The Appellant also mentions having made a request for similar records related to a separate
incident on his property on October 10, 2023. However, the Appellant did not provide the Office with
a copy of that request, and therefore, any dispute regarding that request is not properly before the
Office. See KRS 61.880(2)(a) (requiring a person seeking the Office’s review of an agency’s response toOn appeal, the Fiscal Court again states it has provided all records responsive
to the Appellant’s request. Once a public agency states affirmatively that 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 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. Merely asserting that additional records exist
does not establish a prima facie case that they do or that an agency has failed to
conduct an adequate search. See, e.g., 23-ORD-042 (an assertion that an employee
must have sent or received emails during a specific time failed to establish a prima
facie case that emails existed but were not provided).
Here, the Appellant claims the Fiscal Court should possess telephone records
showing the officer received a call on October 31, 2023, because the officer was
allegedly dispatched to the Appellant’s property on that date in response to a
complaint about his dogs barking. However, the fact the officer was present at the
Appellant’s property does not prove the officer personally received a telephone call
from a complainant or any other person.3 The Fiscal Court claims it provided the
Appellant with all records related to the telephone the officer used on October 31,
2023. The Appellant’s mere assertion that additional records should exist does not
establish a prima facie case that the Fiscal Court did not provide all responsive
records it possesses. As a result, the Office cannot find that the Fiscal Court violated
the Act when it provided the Appellant with all records it claims are responsive to his
request.
a request to inspect records to provide a copy of both his original request and the agency’s response to
it).
3
For example, it is possible the officer was dispatched to the Appellant’s property by radio. Indeed,
the Appellant provides additional correspondence from the Fiscal Court in which it suggested he
submit his request to the “Frankfort E911” dispatch or other similar agencies that may possess records
documenting the officer’s dispatch to the Appellant’s property. Although the Appellant claims to have
already “reached out to the dispatch office” and was informed “the calls had to have been made directly
to [the officer’s] phone number,” he did not provide the Office with any documentation demonstrating
that he sought records from any other public agency that may have dispatched the officer. At bottom,
the Appellant believes additional records should exist and the Fiscal Court claims they do not. The
Office cannot resolve factual disputes between requesters and public agencies about whether all
responsive records have been provided. See, e.g., 23-ORD-317; 22-ORD-010; 19-ORD-083; 94-ORD-121.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/ Matthew Ray
Matthew Ray
Assistant Attorney General
#006
Distributed to:
David Bricarello
Michael Mueller
Max H. Comley