23-ORD-080

April 5, 2023

In re: Kelly Reynolds/Justice and Public Safety Cabinet

Summary: The Justice and Public Safety Cabinet (“the Cabinet”) did
not violate the Open Records Act (“the Act”) when it did not provide
records that do not exist.

Open Records Decision

On February 28, 2023, Kelly Reynolds (“Appellant”) asked the Cabinet to allow
her to inspect “all personnel records/documentation” for her period of employment
from November 1, 2022, to February 28, 2023, including “any disciplinary records
(including the investigations), evaluations conducted on this employee, and any e-
mails containing information about [the Appellant’s] employment, disciplinary
actions/reports, and termination.” In a timely response, the Cabinet provided the
Appellant a copy of her personnel file along with two emails, but stated that it “did
not locate any investigations or evaluations.” This appeal followed.

Once a public agency states affirmatively that it does not possess any
additional responsive records, the burden shifts to the requester to present a prima
facie case that requested records do exist. Bowling v. Lexington–Fayette Urb. Cnty.
Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here, the Appellant claims she “was
terminated because [she] did not ‘fit in’ and based upon [her] evaluation,” but she has
“not seen this evaluation nor was that evaluation discussed with” her. According to
the information in the Appellant’s personnel file, a copy of which she has provided to
this Office, the Appellant was employed in the classified service as a Forensic Autopsy
Technician in the Office of the State Medical Examiner and was separated from
employment during her six-month initial probationary period. The documents
pertaining to her separation do not contain any reference to an evaluation, nor do
they state any other cause for termination.On appeal, the Cabinet states that no evaluation of the Appellant was
conducted because she was separated during initial probation. “Annual performance
evaluations shall be completed for all full-time classified employees with status at the
beginning of the performance year who have remained in continuous merit status
throughout the performance year.” 101 KAR 2:190 § 2. “‘Status’ means the acquisition
of tenure with all rights and privileges granted by [KRS Chapter 18A] after
satisfactory completion of the initial probationary period by an employee in the
classified service.” KRS 18A.005(37). Only “[a]n employee who satisfactorily
completes the initial probationary period [is] granted status.” KRS 18A.111(2).
Because the Appellant was not employed for six months, she did not complete her
initial probationary period, and therefore, did not acquire status. Accordingly, the
Cabinet was not required to conduct a performance evaluation of the Appellant. Thus,
to the extent the Appellant may have established a prima facie case that an
evaluation should exist, the Cabinet has explained why it does not.1 See Eplion v.
Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011).

With regard to disciplinary records or investigations, the Cabinet states, “No
responsive documents were found pertaining to any disciplinary records including
investigations concerning or pertaining to” the Appellant. The Appellant has not
attempted to establish a prima facie case that any disciplinary records or
investigations exist. Under KRS 18A.111(1), “[a]n employee may be separated from
his position . . . during [an] initial probationary period” without cause.2 There is no
reason to believe an investigation or disciplinary action should exist simply because
the Appellant was separated from employment during the initial probation period.
Accordingly, the Cabinet did not violate the Act.3

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 emailed to OAGAppeals@ky.gov.

1
To the extent examination materials might be considered a type of “evaluation,” the Cabinet
correctly notes that under KRS 61.878(3) public agency employees do not “have the right to inspect or
to copy any examination.” See also KRS 18A.020(4) (“a state employee shall not have the right to
inspect or to copy any examination materials”).
2
Cf. KRS 18A.095(1) (“A classified employee with status shall not be dismissed [or] otherwise
penalized except for cause”).
3
On appeal, the Appellant makes a new request for correspondence from six named individuals,
which the Cabinet states is not in its possession but may be in the possession of the Office of the State
Medical Examiner. This new request is not at issue in this appeal.Daniel Cameron

Attorney General

s/ James M. Herrick

James M. Herrick

Assistant Attorney General

#111

Distribution:

Ms. Kelly Reynolds
Peter W. Dooley, Esq.
Ms. Deanna Smith

LLM Summary

In 23-ORD-080, the Justice and Public Safety Cabinet was found not to have violated the Open Records Act as it provided all existing records requested by the appellant, Kelly Reynolds, regarding her employment. The Cabinet did not have additional records such as evaluations or investigations as claimed by the appellant, and it was determined that no such records were required to be maintained or existed due to the appellant's employment status and the nature of her termination during the probationary period.

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