24-ORD-248
November 25, 2024
In re: Doug Price/Kentucky State Treasurer
Summary: The Kentucky State Treasurer (“the Agency”) did not
subvert the Open Records Act (“the Act”) when it did not provide records
that did not exist at the time of the request.
Open Records Decision
On August 26, 2024,1 Doug Price (“the Appellant”) submitted a request for
“copies of records or database exports that detail amounts paid out and collected” in
fiscal years 2023 and 2024. Further, he sought “to obtain the current balance of the
UP fund.” The Appellant also sought “a list from the Treasurer’s office of escheated
items valued at over $500” for six specified years. Last, the Appellant sought “records
of or a database export indicating a search on” two specified Kentucky addresses. In
response, on August 27, 2024, the Agency provided all available public records to the
Appellant. The Appellant then informed the Agency that he had not received all
records he had sought. In response, the Agency stated that portions of his request
sought information or records that did not exist. This appeal followed.
After this appeal was initiated, the Appellant stated that his request was “fully
answered” by the Agency on November 14, 2024, but maintains that the Agency
subverted the Act, within the meaning of KRS 61.880(4), due to its delay in providing
all responsive records. Thus, any claims regarding the Agency’s original non-
production of records are moot, see 40 KAR 1:030 § 6, and the only issue before the
Office is the Appellant’s assertion that the Agency subverted the Act.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain
why. KRS 61.880(1). A public agency may also delay access to responsive records if
such records are “in active use, storage, or not otherwise available.” KRS 61.872(5).
1
The Appellant had previously submitted a similar request to the Agency prior to August 26, 2024,
but withdrew that request and submitted the August 26 request in its place.A public agency invoking KRS 61.872(5) to delay access to responsive records must
notify the requester of the earliest date on which the records will be available and
provide a detailed explanation for the cause of the delay. Id.
Here, the Agency explains that the Plaintiff submitted requests for information
or sought records that did not exist at the time of his request. But rather than deny
the request, it informed the Appellant that it would create records containing the
requested information and later inform him of the cost of doing so.2 On appeal, the
Agency maintains that, at the time of the request, it did not possess additional
responsive records beyond those provided to the Appellant. 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 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 has not made a prima facie case that the Agency possessed
additional responsive records at the time of the request. Rather, he asserts that
previous representatives of the Agency had provided him with the same information
he sought here. However, even accepting as true the Appellant’s claim that he had
been given this information before, that claim is not prima facie evidence that the
Agency possessed a record containing that information at the time of his August 26
request.3 Moreover, merely asserting that certain records should exist does not
establish a prima facie case that they do.4 See, e.g., 24-ORD-017; 23-ORD-294; 23-
ORD-042.
2
Under KRS 61.874(3), if “a public agency is asked to produce a record in a nonstandardized format,
or to tailor the format to meet the request of an individual or a group, the public agency may at its
discretion provide the requested format and recover staff costs as well as any actual costs incurred.”
However, because the Agency has provided the Appellant with responsive records and “fully answered”
his request, the issue of whether the Agency could have charged the Appellant for creation of those
records is moot. See 40 KAR 1:030 § 6.
3
The Agency’s subsequent production of records it claims it created in response to the Appellant’s
request is evidence only that it possessed the information the Appellant sought. That subsequent
production is not prima facie evidence that responsive records existed at the time of the request.
4
Further, even if a requester makes a prima facie case that additional records may or should exist,
the Office cannot conclude that the records do, in fact, exist. Rather, the Office has long held it cannot
resolve factual disputes about whether all records responsive to a request have been provided, or
whether requested records should include additional content. See, e.g., 23-ORD-027; 22-ORD-010; 19-
ORD-083; 03-ORD-061; OAG 89-81.At bottom, the Appellant has not presented a prima facie case that the Agency
possessed responsive records when he submitted his August 26 request.5 Accordingly,
the Office cannot find that the Agency violated the Act, when it did not provide
records it does did possess within five business days of the request.
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
#430
Distributed to:
Doug Price
Beverly K. Stoner
Sam P. Burchett
5
Last, the Office notes that KRS 61.872(5) is not implicated here because the Agency claims
additional responsive records did not exist at the time of the request. An agency must invoke
KRS 61.872(5) and state the earliest date that records will be made available when records are “in
active use, storage, or not otherwise available.” Here, because the records did not exist at the time of
the request, KRS 61.872(5) did not apply to them. See, e.g., 23-ORD-178.