24-ORD-024
January 29, 2024
In re: Kentucky Innocence Project/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it denied a request to provide information,
or when it did not provide a record it does not possess.
Open Records Decision
On December 21, 2023, the Kentucky Innocence Project (“Appellant”)
requested “information” it described as “[t]he total amount of money authorized
and/or spent under the [Kentucky Victim and Witness Protection Program (“the
Program”)] per year, from 2000 through 2023, paid from or by” KSP. Although the
Appellant requested information, it stated it would “accept electronic copies of these
records.” In a timely response, KSP stated it had “conducted a diligent search but was
unable to locate any responsive records.”1 This appeal followed.
The Act does not require public agencies to fulfill requests for information, but
only requests for records. KRS 61.872; Dep’t 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 [their] records.”). Here, the
Appellant’s request was somewhat ambiguous, inasmuch as it expressly sought
“information,” but in the form of “electronic copies [of] records.” Thus, it may be
liberally construed as a request for records in KSP’s possession that contain the
requested information.
However, KSP asserts it possesses no record containing the total amount of
money it expended under the Program for the years requested. Once a public agency
states affirmatively that it does not possess a responsive record, the burden shifts to
the requester to present a prima facie case that the requested record does exist.
Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here,
1
KSP suggested the Appellant submit a request to the Office of Attorney General, which
administers the Program under KRS 15.247(1).the Appellant claims to possess copies of two records showing specific payments made
by KSP in 2006 and 2007. However, the Appellant has not shown that any record
exists containing the “total amount” expended by KSP under the Program between
2000 and 2023. Furthermore, KSP asserts it no longer possesses the two documents
identified by the Appellant because they have been destroyed in accordance with
KSP’s records retention schedule. Moreover, KSP states it “does not maintain the
financial software in which those documents were created and stored.” Nor has the
Appellant cited any statute, regulation, or policy requiring KSP to maintain any
record containing the requested information.2 Accordingly, the Appellant has not
made a prima facie case that KSP possesses a record reflecting “the total amount” of
its expenditures under the Program. Therefore, the Office cannot find that KSP
violated the Act.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#13
Distribution:
Miranda J. Hellman, Esq.
Samantha A. Bevins, Esq.
Ms. Stephanie Dawson
Ms. Abbey Hub
2
In light of the fact that the Office of the Attorney General is charged with administering the
Program under KRS 15.247(1) and 40 KAR 6:010, KSP’s suggestion that the Appellant request such
records from the Office of the Attorney General was reasonable.