23-ORD-032
February 13, 2023
In re: Lawrence Trageser/Jeffersontown Fire Protection District
Summary: The Jeffersontown Fire Protection District (“the District”)
did not violate the Open Records Act (“the Act”) when it did not provide
a record that does not exist.
Open Records Decision
On August 31, 2022, Lawrence Trageser (“Appellant”) requested an electronic
copy of “[t]he investigation report on [a District employee], which lead [sic] to his
disciplinary action and charges.” In a timely response, the District stated that no such
record existed. This appeal followed.
Once a public agency states affirmatively that a requested record does not
exist, the burden shifts to the requester to present a prima facie case that the record
does or should exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d
333, 341 (Ky. 2005). Here, in an attempt to establish that an investigation report
should exist, the Appellant cites KRS 75.130(2). Under that statute, “[a]ny person
may file charges against a member or employee of a fire protection district. . . . The
chairman of the board of trustees shall, after conducting or having conducted any
inquiry or investigation which may be necessary, determine if probable cause appears.
The chairman shall prefer charges to the board of trustees against any member or
employee against whom probable cause exists, of conduct justifying the dismissal or
punishment of the member or employee.” KRS 75.130(2) (emphasis added). The
statute, however, does not require an investigation in all cases, nor does it require a
“report” of any such investigation be created. Thus, the Appellant has not presented
a prima facie case that an “investigation report” should exist.
Nevertheless, the Appellant argues that an investigation report “does exist, in
that, the ‘INVESTIGATIVE’ [sic] report contains many documents with manydifferent labels, such as the complaint, testimony, evidence, charges and reprimands
associated with the alleged wrongful actions.” Thus, the Appellant argues, “an
‘INVESTIGATIVE’ [sic] report did have to be created, if only in documenting the
complaint, charges and reprimands.” Under KRS 61.872(3)(b), it is incumbent on a
person requesting copies of public records to “precisely describe[ ] the public records
which are readily available within the public agency.” Here, the Appellant requested
a record that he precisely described as an “investigation report.” He did not request
or precisely describe a “complaint,” “testimony,” “evidence,” “charges,” or
“reprimands,” each of which is a separate type of record and none of which is
synonymous with “investigation report.” Nor did the Appellant request all records
related to the specific disciplinary matter, which would have been a proper request.
See Univ. of Ky. v. Kernel Press, Inc., 620 S.W.3d 43, 48 n.2 (Ky. 2021). Instead, the
Appellant requested an “investigation report,” which does not exist. Accordingly, the
District did not violate the Act when it denied the Appellant’s request.
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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#18
Distribution:
Mr. Lawrence Trageser
Maurice A. Byrne, Jr., Esq.
Sean F. Dreisbach, Chief