23-ORD-203
August 8, 2023
In re: Whitney Marion/Oldham County Schools
Summary: The Oldham County Schools (“the agency”) did not violate
the Open Records Act (“the Act”) when it did not provide records that do
not exist
Open Records Decision
On June 30, 2023, Whitney Marion (“Appellant”) submitted a request to the
agency to inspect the transcript from its June 26, 2023, meeting, and a list detailing
which policies were approved, not approved, or “held over to another meeting.” In
response, on July 1, 2023, the agency stated it would provide responsive records on
July 21 due to the “primary leadership team . . . [being] away for vacation.” The
Appellant then initiated this appeal on July 11, 2023, claiming to have not received
any further response from the agency.
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . after the receipt of
any such request whether to comply with the request and shall notify in writing the
person making the request, within the five (5) day period, of its decision.” Or, if
responsive records are “in active use, in storage or not otherwise available,” a public
agency may delay access to them by stating the earliest date on which they will be
available and a detailed explanation of the cause of the delay. KRS 61.872(5).
Here, the agency provides a copy of the response it claims to have mailed to
the Appellant on July 7, 2023, which was the fourth business day after the Appellant
submitted her request. The Appellant claims she did not receive the response. The
Office has consistently found it is unable to resolve factual disputes between arequester and a public agency, such as whether a requester received an agency’s
response to a request. See 21-ORD-233 (agency claimed it issued a response but the
requester claimed he did not receive it); see also 22-ORD-125 (agency claimed it did
not receive the request); 22-ORD-100 (same); 22-ORD-051 (same); 21-ORD-163
(same). Accordingly, the Office cannot resolve the factual dispute between the parties
about whether the agency issued the response or whether the Appellant received it,
and therefore, cannot find that the agency’s response was untimely in violation of the
Act.
Now having received the agency’s response to her request, the Appellant claims
it only provided her with a list of the policies discussed at the June 26, 2023, meeting,
and copies of those policies, rather than a list detailing which policies were approved,
not approved, or held to another meeting. The agency claims no such list exists. 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 established a prima facie case that the agency
possesses a list detailing which policies were approved, not approved, or held to
another meeting. Moreover, the Act does not require an agency to create records in
response to a request made under the Act. See Dept. of Revenue v. Eifler, 436 S.W.3d
530, 534 (Ky. App. 2013) (“The ORA does not dictate that public agencies must gather
and supply information not regularly kept as part of its records.”) Therefore, the
agency did not violate the Act when it did not provide records that do not exist.1
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
1
The agency also asks the Office to find that repeated requests to inspect records and appeals to
the Office submitted by the Appellant and others constitute a violation of KRS 61.872(6). That statute
allows an official custodian to refuse to permit inspection of public records in certain circumstances.
Here, the agency did not deny the Appellant’s request under KRS 61.872(6), but rather, it granted the
request and provided responsive records. Therefore, it is not necessary for the Office to address the
agency’s alternative argument.any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#304
Distributed to:
Whitney Marion
Suzanne Hundley
Jason Radford
Eric G. Farris