24-ORD-167
July 29, 2024
In re: Christopher Hunt/Kentucky Board of Cosmetology
Summary: The Kentucky Board of Cosmetology (“the Board”) violated
the Open Records Act (“the Act”) when it did not respond to a request to
inspect records within five business days. The Board did not violate the
Act when it did not provide records that do not exist.
Open Records Decision
On May 6, 2024, Christopher Hunt (“Appellant”) submitted a request to the
Board for “[a]ll communications sent or received by [a specific Board member]
concerning any activities or issues before the [Board] from” February 1, 2024, to the
date of the request. The Appellant specified that his request included “emails,
voicemails, text messages, or any other form of communication, including the [Board
member’s] personal cell phone and email accounts.” On May 16, the Board stated that
some of the requested records “are not within the immediate custody and control of
the Board” and that, pursuant to KRS 61.872(5), responsive records will be made
available on or before May 31, 2024.1 Subsequently, on May 30, the Board stated it
was granting the Appellant’s request.2 This appeal followed.
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . after the receipt of
any such request whether to comply with the request and shall notify in writing the
person making the request, within the five (5) day period, of its decision.” The Board
admits it did not respond to the Appellant’s request until May 16, eight business days
1
The Appellant has not challenged the Board’s invocation of KRS 61.872(5).
2
The Board also stated that some records could be withheld under various exemptions but that it
was producing those records because they had either been drafted by or sent to the Appellant in his
prior capacity as counsel for the Board.after it received the request. Accordingly, the Board violated the Act when it failed to
issue a timely response within five business days.
On appeal, the Appellant claims the Board failed to produce all records
responsive to his request. Specifically, he alleges that records documenting phone
calls made by the specific Board member were not produced. In response, the Board
maintains that it has “produced all responsive records in [its] possession.” 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, 172 S.W.3d at 341).
To make a prima facie case that additional records exist, the Appellant provides
an email and a voicemail that reference two phone calls made by the Board member
concerning Board business. The Appellant further states that during his
“employment as counsel for the Board, [he] was also made aware of at least two other
instances where [the Board member] either attempted to contact, or did contact,
Board employees.” A requester’s bare assertion that an agency must possess
requested records is insufficient to establish a prima facie case that the agency
actually possesses such records. See, e.g., 24-ORD-062; 22-ORD-247; 22-ORD-040.
Rather, to present a prima facie case that the agency possesses or should possess the
requested records, the requester must point to a statute, regulation, or some other
factual support for the contention. See, e.g., 21-ORD-177; 11-ORD-074. Here, the
Appellant has only produced evidence that on two occasions, the identified Board
member made phone calls about Board business. The Appellant has not presented
any statute or regulation requiring the Board to create a record documenting such
calls, or some evidence to support the existence of any responsive records related to
the phone calls within the Board’s possession.3 See also 24-ORD-134 (finding that the
3
The Appellant alternatively requests that the Office require the Board member to produce her
personal cell phone and email to be inspected and analyzed by a “properly authorized forensic
examiner” to determine if additional responsive records exist or whether such records were destroyed.
However, the Attorney General is not a “finder of documents” and cannot resolve factual disputes
between the parties about whether all responsive records have been provided. See 94-ORD-121.
Moreover, the Act only allows the Attorney General to “request additional documentation from the
agency for substantiation” or “request a copy of the records involved,” which “shall not be disclosed.”
KRS 61.880(2)(c). The Act does not allow the Office to compel production of a private cell phone or
personal email account for forensic analysis. Thus, the Office declines the Appellant’s request that it
compel production of the Board member’s personal cell phone and email address for forensic analysis.Appellant had not made a prima facie case that “phone call lists” existed when he
presented evidence that a phone call had occurred). As a result, the Office cannot find
that the Board violated the Act when it did not provide records it does not possess.4
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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#287
Distributed to:
Christopher Hunt
Jacob C. Walbourn
Kelly Childers
Julie M. Campbell
4
The Appellant relies on a recent, not yet final, decision by the Kentucky Court of Appeals for the
proposition that the records he seeks are public records subject to the Act. See Ky. Open Gov’t Coalition,
Inc. v. Ky. Dep’t of Fish & Wildlife Res., No. 2022-CA-0170-MR, 2023 WL 7095744 (Ky. App. Oct. 27,
2023), mot. for disc. rev. granted, No. 2023-SC-0524-D (Ky.). Because the Supreme Court of Kentucky
has granted the Department of Fish and Wildlife Resources’ motion for discretionary review, the Court
of Appeals’ decision is not final or binding authority. RAP 40(H). Moreover, the Board has not claimed
that any responsive records in its possession are not public records subject to the Act. Rather, it claims
that no additional responsive records exist.