23-ORD-323
December 5, 2023
In re: John Fairley/Hopkinsville Police Department
Summary: The Hopkinsville Police Department (“the Department”) did
not violate the Open Records Act (“the Act”) when it did not provide
records that do not exist.
Open Records Decision
Inmate John Fairley (“Appellant”) submitted a request to the Department
seeking records related to the prosecution of the criminal case against him.1 In
response, the Department stated that the only responsive records in its possessions
are witness statements that were provided to the Appellant, with personal
information redacted, pursuant to KRS 61.878(1)(a).2 This appeal followed.
The Appellant asserts that he has been “denied these records that should
exist.” In response, the Department states that it has performed several searches for
the requested records but additional records “do not exist.” 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 makes 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,
1
Specifically, the Appellant sought the “names, documentation, reports, statements of officers in
drug unit [sic] and informants that provided [a specific detective] with information about [his] criminal
case.” He also sought “reports, names, documentation, [and] statements of other individuals
interviewed by [a specific detective and the Hopkinsville Police Department] pertaining to [his] case.”
2
The Department’s redactions to the statements are not at issue in this appeal, as the Appellant
asserts only that additional records should exist.172 S.W.3d at 341). Here, the Appellant has not made a prima facie case that the
Department possesses additional records. Therefore, the Department did not violate
the Act when it did not provide them.
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
#502
Distributed to:
John Fairley #241698
Christine M. Fletcher
Jason Newby
Doug Willen