24-ORD-050
March 4, 2024
In re: Lawrence Trageser/Jeffersontown Fire–EMS District
Summary: The Jeffersontown Fire–EMS District (“the District”) did not
violate the Open Records Act (“the Act”) when it did not provide records
that do not exist.
Open Records Decision
Lawrence Trageser (“Appellant”) submitted a two-part request to the District.
First, he requested “the personnel file of [a specific] employee” including his
“termination letters and resignation letters” as well as “documents pertaining to
complaints, reprimands, disciplinary actions and internal investigation.” Second, the
Appellant requested the “complaint(s) that was/were filed, sent or brought to the
attention of [the District] involving [a specific employee] falsifying a nurses [sic]
signature” after “exchanging the possession of care for a patient at a healthcare
facility during his employment.” In response to part one of the request, the District
stated it would make responsive records available for the Appellant’s in-person
inspection. In response to part two of the request, the District stated, “No responsive
documents exist.” This appeal followed.1
On appeal, the Appellant claims the employee was suspended, and therefore,
the District should have produced a complaint against the employee and records
listing “general or specific charges.” In response, the District maintains that is
possesses no additional records 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
1
The District delayed the Appellant’s access to the records under KRS 61.872(5) to redact personal
information from the records responsive to part one of the request. The Appellant has not challenged
the District’s delay or the redactions it made. Rather, he asserts only that the District should have
produced additional records.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).
The Appellant “believes through informant testimony” that a complaint was
brought against the District employee. He also provides a copy of a suspension order
signed by the District Chief and cites KRS Chapter 75 in support of his claim that
formal charges must have been brought against the employee given his suspension.
The Appellant’s mere belief that records should exist, even if supported by “informant
testimony,” is not enough to establish a prima facie case that a written complaint was
filed against the employee. However, the suspension order does support a finding that
formal disciplinary measures were instituted against the employee.
KRS 75.130 establishes the procedure for disciplining fire protection district
employees. KRS 75.130(1) states, “Except as provided in [KRS 75.130(5)] no member
or employee of a fire protection district shall be . . . suspended . . . [until] charges are
preferred and a hearing conducted as provided in this section.” However,
KRS 75.130(5) provides that a firefighter may be suspended if “the chief of the fire
protection district has probable cause to believe a member or employee of a fire
protection district has been guilty of conduct justifying dismissal or punishment.”
Thus, KRS 75.130(5) allows a chief of a fire protection district, even in the absence of
a formal written complaint, to suspend an employee if he has probable cause to
believe the employee is guilty of conduct justifying dismissal or punishment.
Moreover, KRS 75.130(5) does not require a list of charges to be created and given to
the employee before suspension is ordered, although the employee is ultimately
entitled to a hearing on charges that presumably must be in writing.
Here, the suspension order specifically invokes the District Chief’s authority
under KRS 75.130(5) to suspend the employee. Further, the suspension order was
entered on November 16, 2023, and the Appellant provides proof the employee
resigned three weeks later, on December 6, 2023. Indeed, the Department has
confirmed on appeal that the employee resigned before a formal complaint or charges
against him were filed. Accordingly, to the extent the suspension order established a
prima facie case that disciplinary action against the employee was initiated, the
District has explained why it does not possess a written complaint or a list of “general
or specific charges” brought against the employee. The Office, therefore, cannot findthat the District violated the Act when it claims it provided all records that were
responsive to the request.2
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
#043
Distributed to:
Lawrence Trageser
Sean F. Dreisbach
Maurice A. Byrne, Jr.
2
The Appellant has asked the Office to conduct an in camera review of the District’s records and
determine whether the disputed records exist. See KRS 61.880(2)(c). However, the Attorney General
is not a “finder of documents,” and cannot resolve factual disputes between parties about whether all
responsive records have been provided. See 94-ORD-121. Thus, the Office declines the Appellant’s
request that it conduct an in camera review in order to confirm the District does not possess the
requested records.