21-ORD-037
March 1, 2021
In re: Lawrence Trageser/Justice and Public Safety Cabinet
Summary: The Justice and Public Safety Cabinet (Cabinet) did
not violate the Open Records Act (“the Act”) when it denied a
request for records that do not exist in its possession.
Open Records Decision
Lawrence Trageser (“Appellant”) requested from the Cabinet a copy of a
sexual harassment investigation file based on a report of sexual harassment
against a former Kentucky State Police Commissioner in the late 1990s to early
2000s. The Cabinet denied the Appellant’s request because the records do not
exist in the agency’s possession. The Cabinet also directed the Appellant to the
records custodians for the Kentucky State Police and Kentucky Personnel
Cabinet.
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 requested records do exist. Bowling v. Lexington-Fayette Urb. Cty.
Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here, the Appellant provides a decision
from this Office, rendered in 2002, in which the Office held that this particular
sexual harassment investigation file was subject to public inspection. See 02-
ORD-231. According to the Appellant, this proves that the sexual harassment
investigation occurred and records were created in connection with that
investigation.Although the Appellant has made a prima facie showing that responsive
records may have existed in 2002, more than eighteen years have elapsed since
that decision. The Cabinet claims that it “does not maintain personnel files for
all employees in the departments under its umbrella as a cabinet,” especially
personnel files as old as the one the Appellant seeks. Therefore, the Cabinet
directed the Appellant to the records custodians for agencies more likely to
possess the requested records. See KRS 61.872(4) (“If the person to whom the
application is directed does not have custody or control of the public record
requested, that person shall notify the applicant and shall furnish the name and
location of the official custodian of the agency's public records.”). In doing so, the
Cabinet discharged its duty under the Act.
A party aggrieved by this decision may appeal it by initiating action in
the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Pursuant to 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.
Daniel Cameron
Attorney General
/s/Marc Manley
Marc Manley
Assistant Attorney General
#39
Distributed to:
Lawrence Trageser
Amy Barker