24-ORD-245
November 22, 2024
In re: Eric Bunzow/City of Elsmere
Summary: The City of Elsmere (“the City”) did not violate the Open
Records Act (“the Act”) when it could not provide records not within its
possession, custody, or control.
Open Records Decision
On or about August 31, 2024, Eric Bunzow (“the Appellant”) submitted two
requests to the City pertaining to a social media account on Facebook identified as
“Councilwoman Serena Owen.” First, he requested “a copy of any and all Facebook
messages between” that account and nine named individuals. Second, he requested
“a copy of any and all Facebook people that are blocked on” that account. Upon receipt
of the requests, the City forwarded them to the Councilwoman1 and asked her to
provide the requested records to the city clerk because “the City is not in possession
or control of the account.” The Councilwoman responded that there were no records
responsive to the Appellant’s requests.2
On or about October 11, 2024, the Appellant made a third request to the City
for “a copy of the activity log or a public inspection of the activity log” for the Facebook
account “Councilwoman Serena Owen.” The City forwarded the request to the
Councilwoman, who replied that that she would not comply because the Facebook
page was “a personal political candidate page” and, therefore, “is not subject to” the
Act. This appeal followed.
In response to this appeal, the City asserts it “has taken every action to
attempt to assist” the Appellant, but it “does not possess or maintain” any of the
1
Serena Owen is a member of the Elsmere City Council.
2
The City’s original response indicates that the Appellant also sought copies of the Councilwoman’s
paychecks. However, the Appellant did not submit a copy of his request for paychecks to the Office.
Rather, he submitted the agency’s response, which quotes that request. Because the Appellant did not
submit a copy of his original request for the paychecks, the response to that request is not before the
Office on appeal. See KRS 61.880(2)(a).records at issue. A public agency “is responsible only for those records within its own
custody or control.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 856
(Ky. 2013) (citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S.
136 (1980)). Once a public agency states affirmatively that it does not have the
requested records within its possession, custody, or control, the burden shifts to the
requester to present a prima facie case that it does possess such records. See Bowling
v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here, the
Appellant has not attempted to make such a showing. Accordingly, the City did not
violate the Act when it could not provide the requested records.
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
#427
Distributed to:
Mr. Eric Bunzow
Greg D. Voss, Esq.
Katie Hehman, Clerk
Hon. Marty Lenhof