23-ORD-181
July 25, 2023
In re: Lisa Hieneman/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it denied a request for records that do not
exist within its possession.
Open Records Decision
Lisa Hieneman (“Appellant”) submitted a request to KSP for “[a]ll records
relating to investigation” of a specific person “that was initiated in Ashland, Boyd
County[,] Kentucky at Safe Harbor on April 13, 2023” by a complaining witness
“alleging improper action with a minor by” the specific person. In a timely response,
KSP denied the request because it “was unable to locate any responsive records” and
“no such record exists within [the] agency.” KSP suggested that the Appellant contact
the Ashland Police Department regarding the requested records. This appeal
followed.
On appeal, KSP once again states it does not possess any responsive records.
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 in the agency's custody or control. See Bowling v.
Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the requester
establishes a prima facie case that records do or should exist in the agency’s custody
or control, “then the agency may also be called upon to prove that its search was
adequate.” City of Ft. 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 a prima facie case that the records do exist within KSP’s custody
or control, the Appellant states she has “personal information that the [KSP] trooper
arrived on the scene for this investigation, interviewed several purported witnesses
to the event, and was present for over an hour.” The Appellant further states, “It is
not conceivable that the trooper would have responded to the call, [sic] and made no
notation of any nature as to his response, let alone spend that much time and make
no writing as to the investigation undertaken.” But KSP disputes the Appellant’s
assertions and states it has no record of its troopers ever responding to the incident
the Appellant described in her request.1 Furthermore, a requester’s bare assertion
that an agency should possess requested records is insufficient to establish a prima
facie case that the agency possesses such records. See, e.g., 23-ORD-142; 22-ORD-040.
As a result, the Appellant failed to make a prima facie case that the records do exist
within KSP’s possession. Moreover, KSP has explained on appeal “that a diligent
search of Kentucky’s Open Portal Solution (‘KyOPS’) website did not yield any
records; nor did a search by Post 14 of its Computer-Aided Dispatch (‘CAD’) system.”
Therefore, this Office is unable to find that KSP violated the Act.
A party aggrieved by this decision may appeal it by initiating an 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
#271
Distributed to:
1
Conflicting factual narratives, such as whether a KSP trooper responded to the incident as the
Appellant described, is not something the Office can resolve in an Open Records Act appeal. See, e.g.,
21-ORD-163.Lisa Hieneman
Michelle Harrison
Stephanie Dawson
Abbey Hub