24-ORD-161
July 9, 2024
In re: Nathan McCamish/Lexington–Fayette Urban County Government
Summary: Because the requester has made a prima facie case that a
public record should exist, the Lexington–Fayette Urban County
Government (“the City”) violated the Open Records Act (“the Act”) when
it failed to explain the adequacy of its search for the record.
Open Records Decision
Nathan McCamish (“Appellant”) submitted a request to the City to inspect “the
most up-to-date documentation regarding the percentage of funding provided by [the
City] to” the seven nominating organization listed in Ord. No.1 25-20(2). The
Appellant further specified that “most up-to-date” refers to the “documentation
‘updated on a rotating basis to coincide with the end of the term of each commission
member,’ per [Ord. No.] 25-20(9).” In response, the City produced a single document.
The Appellant then explained that, per Ord. No. 25-20(9), more than one document
should exist. The City responded that “no additional records exists in our custody that
are responsive to your request.” This appeal followed.
After the appeal was initiated, the City provided an email with attachments
and documents that were “filed away in boxes from 2002 and 2009” it believed “may
pertain to [the] Appellant’s original request.” However, the City maintains that the
additional funding documents identified by the Appellant do not exist. 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 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
1
Code of Ordinances, Lexington–Fayette Urban County Government.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, to make a prima facie case the funding records exist, the Appellant cites
Ord. No. 25-20(9)(g), which requires “all groups named as nominating organizations”
to “submit to the mayor . . . in writing” the “[p]ercent[age] of the organization’s
funding provided by the [City].” In response, the City suggests that “the nominating
organizations listed in the Code of Ordinances” did not “provide [the City] with that
information.” Whether the nominating organizations provided the information to the
City is a question of fact this Office is unable to adjudicate. See, e.g., 22-ORD-159 n.2.
But by pointing to the City’s ordinance requiring the production of the funding
records, the Appellant has presented sufficient information to suggest the records
should exist.2 As such, the burden shifts to the City to explain the adequacy of its
search, which it has failed to do.
An adequate search for records is one using methods reasonably designed to
find responsive records. See, e.g., 95-ORD-096. Reasonable search methods include
reviewing the files pertaining to the general subject matter of the request, and the
files of employees either specifically mentioned in the request or whose job duties are
related to the subject matter of the request. See, e.g., 19-ORD-198. To carry its burden
of explaining how its search was adequate, an agency must, at a minimum,
specifically describe the types of files or identify the employees whose files were
searched. See id. But here, the City only states that it “conducted an additional search
to do [its] due diligence and ensure no additional records exist.” The City did not
describe the files it searched or identify which employees’ files were searched. Just as
a requester cannot make a prima facie case that records do or should exist merely by
asserting that they do, an agency cannot meet its burden merely by asserting that it
searched for records.
2
The City cites 24-ORD-101 for the proposition that it may rebut the Appellant’s prima facie case
by stating that the requested records do not exist. In 24-ORD-101, the Office stated that although “the
Appellant ha[d] perhaps presented a case that [records] should exist,” the agency “ha[d] rebutted the
presumption that [records] do exist by asserting that none were created” (emphasis in original).
Importantly, in 24-ORD-101, the agency rebutted the case that records should exist by affirmatively
stating it did not create the requested records. Moreover, the Office explained that “the [agency] ha[d]
discharged its duty under the Act by explaining why no responsive records exist.” Id. (citing Eplion v.
Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011)) (emphasis added). Here, the City states only that “the
failure of the nominating organizations listed in the Code of Ordinances to provide [the City] with that
information is not a violation of the [Act].” “[W]hen it is determined that an agency’s records do not
exist, the person requesting those records is entitled to a written explanation for their nonexistence.”
Eplion, 354 S.W.3d at 603. The City has not affirmatively explained why no responsive records exist
and, therefore, has not rebutted the Appellant’s prima facie case.At bottom, the Office cannot find that the funding records, in fact, exist.
Adjudicating such factual questions is beyond the Office’s purview under
KRS 61.880(2). The Office can, however, determine whether a requester has made a
prima facie case that a record should exist. And once such a showing is made, the
agency is called upon to explain the adequacy of its search. City of Fort Thomas, 406
S.W.3d at 848 n.3. Because the Appellant presented evidence the funding records
should exist, the City was required to describe the methods it used to search for them.
By merely asserting it conducted “an additional search to do [its] due diligence,” the
City has not adequately explained the adequacy of its search. For that reason, 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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#272
Distributed to:
Nathan McCamish
Jason Hernandez
Evan P. Thompson