23-ORD-237
September 11, 2023
In re: J. Brooken Smith/Louisville/Jefferson County Metro Government &
Louisville/Jefferson County Metro Government
Ethics Commission
Summary: Louisville/Jefferson County Metro Government (“Metro”)
and the Louisville/Jefferson County Metro Ethics Commission (“the
Commission”) violated the Open Records Act (“the Act”) when they failed
to respond to a request to inspect records within five business days.
Neither Metro nor the Commission violated the Act when they did not
provide records they do not possess.
Open Records Decision
On July 25, 2023, J. Brooken Smith (“Appellant”) used Metro’s “NextRequest”
system to request copies of the Commission’s records.1 Having received no response
by August 10, 2023, the Appellant initiated this appeal.
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.” There is no
dispute here that the Appellant did not receive a response to his request within five
business days. The question, similarly raised in 23-ORD-134 and 22-ORD-167, is
which public agency is responsible for the violation. For the same reasons held in 23-
1
Specifically, the Appellant sought “all transcripts of the hearing” regarding two specific ethics
complaints and “all pleadings, motions, and orders filed and/or entered concerning” those same ethics
proceedings.ORD-134, the Office finds that both agencies violated KRS 61.880(1) for failing to
respond within five business days, but for slightly different reasons.
The Commission asks the Office to reconsider its prior decision because it is
“factually incorrect” that “Metro is apparently at the Commission’s mercy with
respect to producing the Commission’s records.” 23-ORD-134 p.3. The Commission
explains on appeal that it does not, in fact, have access to its own records, and heavily
relies on Metro staff to facilitate obtaining its records. But as noted previously, Metro
has by law established that “[a]ll files, records, and documents maintained by, or in
the possession of any ethics board, agency, or office under the jurisdiction of Jefferson
County or the former City of Louisville shall be delivered to the Ethics Commission
and thereafter maintained by the Ethics Commission.” LMCO2 § 21.10 (emphasis
added). Therefore, the Commission is the official custodian of its own records. 23-
ORD-134. The response that must be issued within five business days of receiving a
request to inspect records “shall be issued by the official custodian or under his or her
authority, and it shall constitute final agency action.” KRS 61.880(1) (emphasis
added). Because the Commission is the official custodian of its own records under
LMCO § 21.10, it has the legal duty to issue a response itself or demand the agent
acting under its authority do so. Cf. Southern Fin. Life Ins. Co. v. Combs, 413 S.W.3d
921, 928–29 (Ky. 2013) (discussing the agency-principal relationship regarding the
duty to produce records in response to discovery requests under CR 34.01 that were
served on the principal). If the agent fails to perform on behalf of the principal, then
the principal must take the matter up with its agent, but it does not excuse the
principal of its duty to a third party. Because a request for the Commission’s records
that was received by someone “under [its] authority” (i.e., Metro, where the
Commission directs the public to submit its requests) went unanswered for more than
five business days after it was received, the Commission violated the Act.
Metro’s violation of the Act, however, is somewhat different than the
Commission’s. That is because Metro received the request through the NextRequest
system it operates. Being a public agency, and having received a request to inspect
records, Metro also had an independent duty to decide within five business days
whether to grant or deny the request and notify the requester of its decision.
KRS 61.880(1); see also 22-ORD-167. If it has a contractual or other legal duty to the
Commission to perform these services on its behalf, then it was required under that
legal authority to search for and produce the Commission’s records subject to any
applicable exemption. However, if no such contractual or other legal authority
compels Metro to provide these services, then the Act requires it to “notify” the
2
Louisville Metro Code of Ordinances.requester that it “does not have custody or control of the public record requested” and
“furnish the name and location of the official custodian of the agency’s public records.”
KRS 61.872(4). Metro did not determine within five business days whether to grant
or deny the request and notify the requester, KRS 61.880(1), or direct the requester
to the proper agency under a claim that it was not the official custodian,
KRS 61.872(4). Therefore, it violated the Act.
On appeal, both agencies claim they do not possess the specific transcripts and
pleadings the Appellant requested.3 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 either Metro
or the Commission possess transcripts or pleadings related to the specified ethics
complaints. Accordingly, the Commission and Metro did not violate the Act when they
did not provide records they do not possess.
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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
3
Metro did locate and provide meeting agendas and minutes related to the specified complaints.#349
Distributed to:
Brooken Smith
Alice Lyon
Annale Taylor
Natalie S. Johnson
Nicole Pang
F. Todd Lewis