23-ORD-238
September 12, 2023
In re: Vivian Miles/Lexington Police Department
Summary: The Lexington Police Department (“the Department”) did
not violate the Open Records Act (“the Act”) when it did not provide
records it does not possess.
Open Records Decision
Vivian Miles (“Appellant”) submitted a request for “[r]ecords identifying any
CPS 115 investigation” regarding a specific business or individuals associated with a
specific address that the Department had received between March and November
2019. The Appellant also sought all emails, text messages, or other correspondence
related to the same investigation that were sent or received by 17 named individuals.
The Department responded by providing a report of calls made to the specified
address, but stated it did not possess any responsive emails or other records. This
appeal followed.
On appeal, the Department maintains that it provided all responsive records
to the Appellant and it does not possess any additional records. 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).Regarding her request for texts, emails, and other correspondence, the
Appellant has not established a prima facie case that the Department possesses
responsive records. Even if the Appellant had established a prima facie case, the
Department has explained that it only retains its emails for two years, in accordance
with its retention schedule for emails.1 Thus, the Department did not violate the Act
when it did not provide records it does not possess.
Regarding her request for records identifying a CPS 115 investigation, the
Appellant submitted what appears to be the first page of a “Complaint Investigation
Report,” dated in 2019, which she received from the Cabinet for Health and Family
Services. The record indicates that the Department for Community Based Services
(DCBS) investigated the subject business. The Appellant also attached a copy of
DCBS Standard of Practice, 2.15.1, which states that DCBS will “[p]rovide copies of
the DPP-115 to the parties listed on the CPS Investigative Distribution Chart.”
Finally, the Appellant attached a copy of the distribution chart referenced in the
policy that was last revised in 2021, two years after the subject investigation. The
distribution chart lists as a party “Local Law Enforcement or Kentucky State Police.”
Even if these materials establish a prima facie case that a DPP-115 should
have been sent to the Department, on appeal the Department explains that it
searched all its records, including those contained in the Special Victim’s Unit that
investigates crimes against children, and it could not locate any additional responsive
records. Thus, the Department has explained the adequacy of its search and it did
not violate the Act when it did not provide records it does 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.
1
See Series L5450, Lexington–Fayette Urban County Government Records Retention Schedule,
available
at
https://kdla.ky.gov/records/RetentionSchedules/Documents/Local%20Record…
nFayetteUrbanCountyGovernmentRecordsRetentionSchedule.pdf (last accessed Sept. 12, 2023).Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#350
Distributed to:
Vivian Miles
Jason H. Hernandez