24-ORD-169
July 30, 2024
In re: Vivian Miles/Lexington Police Department
Summary: The Lexington Police Department (“the Department”) did
not violate the Open Records Act (“the Act”) when it could not provide
records that do not exist.
Open Records Decision
On June 24, 2024, Vivian Miles (“Appellant”) requested inspection of records
containing information that was purportedly “missing” from a “Search Warrant
Inventory Return” form dated July 12, 2019. Specifically, the Appellant requested the
information designated on the form as Items #1 and #2, which do not appear in the
columns labeled “Description of Items – Where Found” and “Found by.”1 In a timely
response, the Department stated the request “appears to be a request for information
as opposed to a request for specifically described documents.” However, the
Department noted that any “information regarding the retrieval and booking of Item
#1 and Item #2 associated with this case” might be found in the full case report or the
“Property & Evidence Record,” both of which it had previously provided to the
Appellant. This appeal followed.
On appeal, the Department explains that “Items #1 and #2 were not seized
pursuant to a search warrant, rather, they were obtained with the victim’s permission
as part of the investigation and voluntary collection of evidence.” Thus, those items
are not described on the Search Warrant Inventory Return form because they were
not found in the execution of a search warrant. The Department affirmatively states,
“There are no additional documents regarding this request that [the Appellant] has
not received.”
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
1
The relevant space on the form contains a notation that “item numbers one and two were already
booked into property and evidence.”that such records do exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172
S.W.3d 333, 341 (Ky. 2005). If the requester establishes a prima facie case that
records do or should exist, “then the 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 support a claim that the
agency possesses responsive records that it did not provide, the Appellant must
produce some evidence that calls into doubt the adequacy of the agency’s search. See,
e.g., 95-ORD-96.
Here, the Appellant provides a copy of a “Medical Forensic Examination” form
that identifies Item #1 as a “SAFE [Sexual Assault Forensic Evidence] kit” and Item
#2 as “pink/gray shorts.” The Appellant also provides a copy of an “Affidavit in
Support of and Petition for Search Warrant” related to a search of a suspect and his
apartment to obtain cell phones, photographs of the apartment, buccal swabs of the
suspect, “and any other item(s) thought to have been used in the commission of the
sexual assault.” The affidavit explains that the “buccal swabs . . . would be used to
compare the suspect’s DNA to the recovered DNA collected in the sexual assault
examination collection kit.”2 However, nothing in those records is contrary to the
Department’s claim that the SAFE kit and the shorts were collected voluntarily from
the victim and not seized pursuant to a search warrant. Indeed, the affidavit confirms
that neither Item #1 nor Item #2 was within the scope of the search warrant, and
that DNA evidence had already been collected from the victim before the search
warrant was issued. Thus, the Appellant has not presented a prima facie case that
any records exist, or should exist, containing search warrant information for evidence
Items #1 and #2. Accordingly, the Department 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
2
Buccal swabs from the suspect are listed as Item #3 on the Search Warrant Inventory Return form,
while Item #4 is a knife found at the residence.#289
Distributed to:
Ms. Vivian Miles
Chris Eller, Esq.
Ms. Shannon Penegor