24-ORD-101
April 17, 2024
In re: Jill Charles/Boone County Planning Commission
Summary: The
Boone
County
Planning
Commission
(“the
Commission”) did not violate the Open Records Act (“the Act”) when it
could not provide records that do not exist.
Open Records Decision
On March 24, 2024, Jill Charles (“Appellant”) requested copies of the “minutes”
of meetings held by the Zone Change Committee1 (“the Committee”) on February 15
and September 20, 2023. In a timely response, the Commission advised that “minutes
are not taken at the Zone Change Committee meeting.” However, the Commission
provided the Appellant with notes that were prepared for the Committee in advance
of the two meetings. This appeal followed.
Once a public agency states affirmatively that it does not possess any
responsive records, the burden shifts to the requester to present a prima facie case
that the records do exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172
S.W.3d 333, 341 (Ky. 2005). A requester must provide some evidence to support a
prima face case that requested records exist, such as the existence of a statute or
regulation requiring the creation of the requested records, or other factual support
for the existence of the records. See, e.g., 21-ORD-177; 11-ORD-074. 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 cites KRS 61.835, a provision of the Open Meetings Act,
which requires every public agency subject to that law to record “minutes of action
taken at every meeting[,] setting forth an accurate record of votes and actions at such
1
Although the Appellant’s request referred to the “Public Zone Committee,” it appears this was
merely a misnomer.meetings.” Under this provision, the Appellant has perhaps presented a prima facie
case that minutes of the Committee meetings should exist. The Commission,
however, has rebutted the presumption that minutes do exist by asserting none were
created. As such, the Commission has discharged its duty under the Act by explaining
why no responsive records exist. See Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky.
App. 2011).2 Therefore, the Commission did not violate 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
#183
Distributed to:
Ms. Jill Charles
Dale T. Wilson, Esq.
Mr. Kevin Costello
Ms. Sara Smith
2
To the extent the Appellant argues that minutes should have been created, she is alleging a
violation of the Open Meetings Act. However, the Appellant has not begun enforcement of the Open
Meetings Act by submitting a written complaint to the presiding officer of the agency describing the
alleged violations and proposing a remedy. See KRS 61.846(1). As such, she has not provided the Office
a copy of her written complaint or the agency’s response to it, as required to invoke the Office’s
jurisdiction to determine whether a public agency has complied with the Open Meetings Act. See
KRS 61.846(2); see also Univ. of Ky. v. Hatemi, 636 S.W.3d 857, 871 (Ky. App. 2021). Thus, the Office
expresses no opinion as to whether the Committee’s process of drafting “Committee Reports” and
presenting them to the Commission at its meeting complies with KRS 61.835.