24-ORD-132
May 31, 2024
In re: Cody Glenn/Transportation Cabinet
Summary: The Transportation Cabinet (“the Cabinet”) did not violate
the Open Records Act (“the Act”) when it could not provide records that
do not exist.
Open Records Decision
On April 16, 2024, Cody Glenn (“Appellant”), a former employee of the Cabinet,
requested “copies of any emails within the Department of Highways that include
conversations about [the Appellant] and/or about [a] complaint [he] filed in April
2024,” including “but not limited to” four specific email addresses. The Cabinet
provided responsive records to the Appellant in a timely manner. On April 19, 2024,
the Appellant inquired as to whether the records provided included “ALL of the email
communications cabinet wide” about the Appellant and his complaint. On April 23,
2024, the Cabinet responded affirmatively. This appeal followed.
The Appellant claims the Cabinet has “no[t] disclosed all the documents”
responsive to his request. In response, the Cabinet reiterates that it has “provided
the Appellant . . . with all responsive records.” Once a public agency states
affirmatively that no further records exist, the burden shifts to the requester to
present a prima facie case that additional records exist. See Bowling v. Lexington–
Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here, the Appellant claims
to “know about the [emails] they didn’t send [him]” and states that he “want[s] all the
emails [the Cabinet] ha[s] hid, and deleted.” However, the Appellant provides no
evidence that additional emails exist. A requester’s bare assertion that an agency
possesses requested records is insufficient to establish a prima facie case that the
agency, in fact, possesses them. See, e.g., 22-ORD-040. Rather, to present a prima
facie case that the agency possesses or should possess the requested records, the
requester must provide some statute, regulation, or factual support for his contention.
See, e.g., 21-ORD-177; 11-ORD-074. As the Appellant has provided only a bare
assertion, he has not presented a prima facie case that additional emails exist.Because the Cabinet provided all records responsive to the Appellant’s request, it 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
#232
Distributed to:
Mr. Cody Glenn
Jesse W. Rowe, Esq.