24-ORD-061

March 13, 2024

In re: Kenneth Tracy/Franklin County Planning and Building Codes

Department

Summary: The Franklin County Planning and Building Codes
Department (“Department”) did not violate the Open Records Act (“the
Act”) when it did not provide records that do not exist.

Open Records Decision

Kenneth Tracy (“Appellant”) submitted a request to the Department seeking a
“copy of all documentation pertaining to zone changes from 2010 to present with
respect to” a particular parcel of land. In response, the Department stated, “After
searching for records, there is no information available.” This appeal followed.

On appeal, the Department maintains that no documentation related to a zone
change for the specified parcel exists because the identified parcel “has been zoned
rural residential since at least 1992,” and “[n]o applications for a zoning change have
been filed for th[e] property since 2010.” 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 has not made a prima facie case that the Department
possesses records regarding a zone change of the identified parcel. Therefore, the
Department did not violate the Act when it did not provide them.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

#146

Distributed to:

Kenneth Tracy
Ben Judah
Max H. Comley

LLM Summary

In the decision regarding Kenneth Tracy's appeal against the Franklin County Planning and Building Codes Department, the Attorney General ruled that the Department did not violate the Open Records Act. The Department had responded to Tracy's request by stating that no records existed pertaining to zone changes for a specified parcel of land since it had been zoned rural residential since at least 1992 and no applications for a zoning change had been filed since 2010. The decision follows the legal precedent that a public agency is not in violation of the Act when it does not provide records that do not exist, as the burden shifts to the requester to prove otherwise, which was not met in this case.

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