24-ORD-134
June 12, 2024
In re: Kenneth Tracy/City of Frankfort
Summary: The Office cannot find that the City of Frankfort (the “City”)
violated the Open Records Act (“the Act”) when it partially denied a
request for records that it claims do not exist within its possession.
Open Records Decision
On April 26, 2024, Kenneth Tracy (“Appellant”) submitted a request for records
to the City for a “copy of all text messages, phone call lists showing duration of calls,
and emails with respect to 850 Hickman Hill Lane (PVA Map #104-00-00-005.00), by
and between” the Frankfort–Franklin County Planning Commission (“Commission”)
Chairperson “and all planning commissioner members.” The Appellant’s April 26
request also requested similar records for other named commissioners. On May 3,
2024, the City responded, partially granting the request as to the records related to
the Commission Chairperson and providing responsive records. The City also
partially denied the request as to the other named commissioners because the
Commission Chairperson “is the only board member that had any related records.”
This appeal followed.
Once a public agency states affirmatively that it does not possess any
responsive records, the burden shifts to the requester to present a prima facie case
that the records do exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172
S.W.3d 333, 341 (Ky. 2005). A requester must provide some evidence to support a
prima face case that requested records exist, such as the existence of a statute or
regulation requiring the creation of the requested records, or other factual support
for the existence of the records. See, e.g., 21-ORD-177; 11-ORD-074. If the requester
is able to make 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 FortThomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling,
172 S.W.3d at 341).
Here, the City initially and on appeal stated affirmatively that it does not
possess any additional responsive records.1 To make a prima facie case that the City
should possess additional responsive records, the Appellant asserts that, because the
records the City provided “mention” phone calls between parties, there should be
“documentation” of “how the conversation took place.” As proof, the Appellant
provides an email dated May 1, in which a phone “call” is referenced. Here, although
the Appellant has provided some evidence to factually support his claim that a phone
call occurred, he has not presented any statute or regulation requiring the City to
create the requested records, or some evidence to factually support the existence of
any responsive records related to the phone call within the City’s possession.2 As a
result, the Office cannot find that the City possessed the requested record at the time
of the Appellant’s request or that it violated the Act.
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
1
The City, on appeal, also states that, on May 3, 2024, it received a similar but different request
from the Appellant and provided records responsive to that request. However, because the Appellant
did not provide the Office with copy of that request or the City’s response, any issues regarding that
request are not before the Office. See KRS 61.880(2)(a).
2
The Appellant responded to the City’s response on appeal, in which he asserts the City “does not
provide cell phones” but, “if a private cell phone is used to conduct public business on behalf of [the
City], those records become public record.” However, the Appellant has not provided proof that any
related records were generated. In contrast, the City asserts that records responsive to the part of the
Appellant’s request it partially denied never existed.#235
Distributed to:
Kenneth Tracy
Chermie Maxwell
Laura Milam Ross
Laura Hagg
Layne Wilkerson