24-ORD-164
July 18, 2024
In re: Vivian Miles/Lexington Police Department
Summary: The Lexington Police Department (“the Department”) did
not violate the Open Records Act (“the Act”) when it did not provide
records that do not exist.
Open Records Decision
Vivian Miles (“Appellant”) submitted a request to the Department for “[r]ecords
identifying” a specific officer’s report “documenting evidence received from” a
Department employee between June 22 and June 24, 2019. In a timely response, the
Department granted the request and provided three responsive records. On June 19,
2024, the Appellant initiated this appeal, claiming the Department did not provide a
“report” from the specific officer she listed in her request.
On appeal, the Department states that it again searched for additional records
responsive to the Appellant’s request but was unable to locate the specific officer’s
report. Once a public agency states affirmatively that it 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). A requester must provide some evidence to make 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 Fort
Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling,
172 S.W.3d at 341).Here, in an effort to make a prima facie case that the Department should
possess the specific officer’s report, the Appellant relies on the Department’s Report
Procedures.1 Subsection A states that “[e]lectronic case reports shall be taken on”
certain crimes. Subsection D requires that supervisors “approve all electronic case
reports” and ensure “that they are accurate, complete, and legible.” However, even if
the Department’s procedures required a “report” be generated in the case the
Appellant identified, those procedures do not require a report to be created by a
specific officer. Thus, the Appellant has failed to make a prima facie case that a
“report” created by the specific officer she identified should exist and that the
Department should possess it. Further, even if she had made a prima facie case, the
Department sufficiently explains on appeal that the identified officer’s involvement
in the case was limited to “retrieving the kit from the Sexual Assault Nurse Examiner
and booking the kit into evidence.” Accordingly, the Department did not violate the
Act when it did not provide a specific officer’s report.
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
#277
Distributed to:
Vivian Miles
Shannon Penegor
Michael Cravens
Evan P. Thompson
1
Specifically, the Appellant cites LPD-G.O. 1991-05I Report Procedures. Part V. Report Taking
Guidelines.