22-ORD-250
November 21, 2022
In re: Kimberly Holloway/Graves County Clerk
Summary: The Graves County Clerk (“the Clerk”) violated the Open
Records Act (“the Act”) when her initial response to a request to inspect
records failed to explain how an exemption applied to deny the request.
However, the Clerk has clarified on appeal that no responsive record
exists.
Open Records Decision
Kimberly Holloway (“the Appellant”) asked the Graves County Clerk to provide
“a complete list of the Graves County Republican poll workers and the dates that they
became poll workers or were otherwise elected to office.” In a timely response, the
Clerk stated “under KRS 61.878 (1-A) [sic] these records are protected under [sic]
dissemination.” This appeal followed.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain why.
KRS 61.880(1). Here, the Clerk issued a response within five business days and
denied the request under KRS 61.878(1)(a), the personal privacy exemption.
However, the Clerk did not explain how KRS 61.878(1)(a) applied to the records
withheld. Thus, the Clerk violated the Act when she cited an exemption to deny a
request but failed to explain how the exemption applied to the records withheld. KRS
61.880(1).
After the appeal was initiated, the Clerk provided her additional
correspondence with the Appellant. After the Clerk had denied the Appellant’s first
request, the Appellant disputed the denial and sent a second request in which she
sought “a complete list of the Graves County Republican County Committee and thedates that they became poll were [sic] elected to office.” The Appellant further stated
that she did not believe KRS 61.878(1)(a) applied to the requested list. The Clerk told
the Appellant she did not understand which records the Appellant was seeking, but
that the Clerk “do[es] not have access” to records of the “GOP committee.”
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 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 her prima facie case that a responsive list should exist, the
Appellant relies on KRS 117.045, which provides for the selection and qualification
of “precinct officers.”1 Specifically, under KRS 117.045(2), “[t]he county executive
committees of the two (2) political parties having representation on the State Board
of Elections may, on or before March 15 each year, designate in writing to the county
board of elections a list of not less than four (4) names for each precinct” (emphasis
added). However:
If no lists are submitted by the county executive committees under [KRS
117.045(2)], the two (2) members of the county board of elections who
are appointed by the State Board of Elections may submit lists; and the
county board of elections shall select the sheriff and one (1) judge from
one (1) list and the clerk and the other judge from the remaining list.
KRS 117.045(4)(b).2
A reasonable interpretation of the Appellant’s request for a “list” of
“Republican poll workers” is that she sought a copy of the “list” that may have been
submitted by the Graves County Republican Party executive committee, as described
in KRS 117.045(2). But the county executive committees of the political parties are
not required to submit such lists, and KRS 117.045 provides for several alternatives
in the event the county executive committees do not submit lists. The Clerk confirmed
that the Graves County Republican Party executive committee did not submit such
1
Under KRS 61.880(2)(c), this Office sought additional information from the parties to clarify which
records the Appellant sought and which records the Clerk possessed. The Appellant confirmed that
she sought the list described under KRS 117.045(2), i.e., a list submitted by the Graves County
Republican Party executive committee.
2
County boards of election or Clerks may also select an additional and “adequate” number of
“alternative” precinct officers from lists previously submitted, KRS 117.045(4)(d), or from other
volunteers in the precinct, KRS 117.045(4)(f) and (6).as a list. Accordingly, the Clerk does not possess a record responsive to the Appellant’s
request.3
In sum, although the Clerk initially violated the Act when she denied a request
without explaining how a claimed exemption applied to the record withheld, the Clerk
cannot provide a record that she does not possess, and she has explained why she
does not possess the requested list.
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 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#336
Distributed to:
Kimberly Holloway
Kimberly Gills
3
Because the Clerk does not possess a list submitted by the Graves County Republican Party
nominating precinct workers, it is unnecessary to decide whether KRS 61.878(1)(a) allows the
withholding of precinct worker identities. But the Office notes that full transparency in the election
process is vital. The public interest in the identities of those tasked with running our elections is quite
high, whereas the personal privacy interest in a person’s name is low. See, e.g., 03-ORD-034 (finding
that KRS 61.878(1)(a) did not apply to withhold the identities of voters using a voter assistance form);
OAG 82-234 (“a person’s name is personal but it is the least private thing about him”).