23-ORD-223
August 18, 2023
In re: Brooke Burkhart/Estill County Clerk
Summary: The Estill County Clerk (the “Clerk”) violated the Open
Records Act (“the Act”) when he failed to respond to a request to inspect
records within five business days, and when he invoked KRS 61.872(5)
but failed to dispense with the request by the date he said records would
be available for inspection.
Open Records Decision
On May 25, 2023, Brooke Burkhart (“Appellant”) submitted two requests to
the Clerk to inspect records relating to the May 2023 primary elections.1 On June 5,
2023, the Clerk responded, invoking KRS 61.872(5) because the requested
surveillance video was in active use. The Clerk also stated he did not possess
electronic voter signature rolls because they had not been produced by the vendor.
The Clerk notified the Appellant the video would be available on June 16, but was
unable to estimate when the electronic signature rolls would be produced. Regarding
both categories of records, the Clerk invited the Appellant to resubmit her requests.
This appeal followed.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain why.
KRS 61.880(1). Here, the Clerk’s response to the Appellant’s two requests was
untimely because it was issued on the seventh business day after receipt of the
1
Specifically, the Appellant sought video surveillance tapes of the election machines from 6:00 p.m.
on May 16, 2023, to 6:00 p.m. on May 17, 2023. The Appellant also sought, “in spreadsheet format (.csv
or .xlsx) [the Clerk’s] complete voter sign-in rosters for every precinct, absentee, early, and election
day voters from the May 2023” primary election.requests. Accordingly, the Clerk violated the Act when he failed to issue a timely
response.
A public agency may also delay access to responsive records if such records are
“in active use, storage, or not otherwise available.” KRS 61.872(5). A public agency
that invokes KRS 61.872(5) to delay access to responsive records must also notify the
requester of the earliest date on which the records will be available, and provide a
detailed explanation for the cause of the delay. The Office has previously found that
an agency violates the Act when it invokes KRS 61.872(5) to delay access to records
and then fails to produce the records by the date to which it committed itself. See,
e.g., 23-ORD-079; 21-ORD-011.
With respect to the request for video, the Clerk invoked KRS 61.872(5) and
notified the Appellant that the earliest date on which the video would be available
would be June 16, 2023. This was so, according to the Clerk, because under
KRS 117.295, the video surveillance had to run continuously for 30 days and could
not be interrupted. See 23-ORD-178 (holding the same). However, the Appellant
claims the video was not made available to her on June 16, 2023, and the Clerk has
not disputed that claim.2 Accordingly, the Clerk violated the Act when he failed to
produce the surveillance video on the date he stated it would be available.
With respect to the request for electronic signature rolls, the Clerk stated he
“does not currently possess” signature rolls because the vendor had not provided them
as of the date of the request. 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 Clerk
possessed electronic signature rolls on the date of the request. Further, the Clerk
explained that the electronic rolls would not exist until they were produced by the
vendor. Accordingly, the Clerk did not violate the Act when he did not provide the
records it did not possess at the time of the request.3
2
The Clerk confirmed receipt of this appeal but did not otherwise respond to it.
3
The Office notes that several county clerks obtained these records from their vendors in June 2023.
See, e.g., 23-ORD-173. Thus, it may no longer be true that the Clerk does not possess the requestedA 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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#325
Distributed to:
Brooke Burkhart
Brian Crowe
Jason Riley
records. Moreover, with respect to the Clerk’s statement that the Appellant should be prepared to pay
costs for copying and mailing the records, the Office notes that the vendors have been providing these
records in electronic PDF format, meaning there should be no cost in reproducing them. To the extent
the Clerk intends to print the records so that they may be redacted of personal information, such as
dates of birth or addresses, he may not pass along the costs associated with printing and redacting the
records to the Appellant. See id.