23-ORD-058
March 15, 2023
In re: Jimmy Hall/Bowling Green Police Department
Summary: The Bowling Green Police Department (“the Department”)
violated the Open Records Act (“the Act”) when it failed to respond to a
request within five business days of receiving it. However, the
Department did not violate the Act when it denied a request for records
that do not exist within its possession.
Open Records Decision
On January 24, 2023, inmate Jimmy Hall (“Appellant”) submitted a request to
the Department for copies of various records. The request contained six subparts, all
of which appear to be related to evidence logged in an unspecified criminal case.
Subpart one sought “the National Court Order to examine the cellphone item
inventory” of a particular Samsung cellphone. Subpart two sought “the information
taken from” a cellphone he identified by its phone number and what appears to be
the SIM card identification number. Subpart three sought “the search warrant and
affidavit to CPI item inventory in internal case no. 15-BGPD-07-02.” Subpart four
sought “the date and time item CPI cellphone was received in case no. 15-BGPD-07-
02.” Subpart five sought “all evidence found on item CPI and [the SIM card
identification number] noted above.” Subpart six sought “the chain of custody”
documenting the inventory of the items identified in subpart five. On February 10,
2023, having received no response from the Department, the Appellant initiated this
appeal.
When a public agency receives a request under the Act, it must determine
within five business days whether to grant or deny it and notify the requester of itsdecision. KRS 61.880(1). On appeal, the Department admits it received the
Appellant’s request and failed to issue a timely response to it. Thus, the Department
violated the Act when it failed to issue a response within five business days of
receiving the request. However, the Department provides on appeal records
responsive to subparts three, four, and six of the Appellant’s request. Therefore, any
dispute regarding those subparts of the Appellant’s request is now moot. See
40 KAR 1:030 § 6.1
As for subparts one, two, and five of the request, the Department states
affirmatively that it does not possess any records responsive to those subparts.2 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, the Appellant has not attempted to make a prima facie case responsive
records should exist because the Department did not respond to his request until after
it received notice of this appeal. Nevertheless, the Department explains that it did
not investigate the underlying criminal matter because the alleged offense occurred
in Butler County. The Department was instead retained to perform an examination
of the identified cellphone. Because the underlying criminal case was not investigated
by the Department, it did not log into evidence records responsive to subparts one,
two, and five of the request. Rather, the Department explains that it “was able to
verify that the Butler County Commonwealth’s Attorney has, on a flash drive,” the
records responsive to these portions of the Appellant’s request.3 Thus, the
1
The Department states under KRS 61.878 (1)(a) it redacted “two phone numbers believed to belong
to the juvenile victim . . . and the victim’s mother’s address from a chain of custody document.”
KRS 61.878(1)(a) exempts from inspection “[p]ublic records containing information of a personal
nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal
privacy.” The Supreme Court of Kentucky has held that personally identifiable information such as
this may be categorically redacted under KRS 61.878(1)(a). See Ky. New Era, Inc. v. City of
Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013).
2
The Department explains that its involvement in the underlying criminal case “was limited to
phone examination.” The Department states that one sentence of information responsive to subparts
two and five was provided within a copy of a report it provided in response to subparts three, four, and
six. The statement was made by one of its detectives and “related to what was not found on the phones.”
3
Under KRS 61.872(4), “[i]f 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.” The Department complied withDepartment did not violate the Act when it denied a request for records that do not
exist within its possession.
A party aggrieved by this decision may appeal it by initiating 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.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#069
Distributed to:
Jimmy Hall #278442
Michael Delaney
Hillary Hightower
Todd Alcott
KRS 61.872(4) by identifying the Commonwealth’s Attorney for the 38th Judicial District as the official
custodian of the requested records.