24-ORD-260
December 6, 2024
In re: Jerrol Summerville/Graves County School District
Summary: Because the requester has made a prima facie case that a
public record should exist, the Graves County School District (“the
District”) violated the Open Records Act (“the Act”) when it failed to
explain the adequacy of its search for the record. The District also
violated the Act when it stated that a portion of the request was
“unclear” rather than inform the requestor that it does not possess
records responsive to that portion of the request. The District did not
violate the Act when it did not produce records it does not possess.
Open Records Decision
Jerrol Summerville (“the Appellant”) submitted an eight-part request to the
District seeking to inspect a variety of records related to particular district employees
and certain District policies.1 In response to subpart 1, the District stated that “this
document could not be located.” In response to subpart 4, the District stated, “The
requested records would be maintained by” the Kentucky Department of Education.
And in response to subparts 6 through 8, the District stated, “It is unclear what
specific policies you are seeking; however, all [District] policies are available for
review online.” This appeal followed.2
1
Specifically, the Appellant sought: (1) a particular employee’s “letter of resignation”; (2) minutes
of the Graves County School Board approving an employee’s contract for specified periods of time; (3)
“schedules” for District positions including “stipends” and “extended days” from each school year from
2020 to the present; (4) the job descriptions of two District employees; (5) the minutes approving the
job descriptions of two employees; (6) the policies that permit employees to “resign their positions,”
“remain on the payroll of the [District],” “have no position with the [District],” and “retain their
previous position’s stipends and extended days”; (7) the policy “that allows employees with maximum
extended days (54) to also be a vendor of consulting services to the [District]”; and (8) the policy
“describing the procedure for verification of extended days worked.
2
The Appellant has not appealed the District’s responses to subparts 2, 3, and 5 of his request.On appeal, the District maintains that it does not possess the “job descriptions”
identified in subpart 4 of the request nor does it possess the “letter of resignation”
identified in subpart 1. Regarding the letter of resignation, the District says it “did
conduct a ‘diligent search’ of its records and” it did not find a copy of the identified
employee’s “letter of resignation.” 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 is able to make 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).
First, regarding the job descriptions of two District employees, the Appellant
has not established a prima facie case that the District possesses the identified job
descriptions. Rather, he argues the District must possess the job descriptions because
these individuals have retained District benefits. But merely asserting that
additional records should exist does not establish a prima facie case that they do. See,
e.g., 24-ORD-017; 23-ORD-294; 23-ORD-042. Therefore, the District did not violate
the Act when it did not provide “job descriptions” it does not possess.3
Turning now to the “letter of resignation,” to make a prima facie case that the
record exists, the Appellant cites KRS 161.780(1), which requires a teacher seeking
to terminate his or her contract to “giv[e] two (2) weeks written notice to the employing
superintended.” The Appellant asserts the District employee at issue was a principal.
“The term ‘teacher’ for the purpose of [KRS 161.780] shall mean any person for whom
certification is required as a basis of employment in the public schools of the state,
with the exception of the superintendent.” KRS 161.720(1). “Principals fall within
this category because they are required to be certified by the Education[ ] Professional
Standards Board.” Fankhauser v. Cobb, 163 S.W.3d 389, 406 (Ky. 2005) (citing
KRS 161.020(1)(a)). Thus, by pointing to KRS 161.780(1), which required the
employee at issue to submit written notice of termination of his or her contract, the
Appellant has presented sufficient information to suggest the record should exist. As
such, the burden shifts to the District to explain the adequacy of its search, which it
has failed to do.
3
The District, in its original response and on appeal, states that the “job descriptions” are in the
possession of the Kentucky Department of Education. See KRS 61.872(4) (“If the person to whom the
application is directed does not have custody or control of the public record requested, that person
shall notify the applicant and shall furnish the name and location of the official custodian of the
agency's public records.”).An adequate search for records is one using methods reasonably designed to
find responsive records. See, e.g., 95-ORD-096. Reasonable search methods include
reviewing the files pertaining to the general subject matter of the request, and the
files of employees either specifically mentioned in the request or whose job duties are
related to the subject matter of the request. See, e.g., 19-ORD-198. To carry its burden
of explaining how its search was adequate, an agency must, at a minimum,
specifically describe the types of files or identify the employees whose files were
searched. See id. But here, the District only states that it “did conduct a ‘diligent
search’ of its records” and did not locate the record. The District did not describe the
files it searched or identify which employees’ files were searched. Just as a requester
cannot make a prima facie case that records do or should exist merely by asserting
that they do, an agency cannot meet its burden of proving it diligently searched for a
record merely by asserting that it did.
At bottom, the Office cannot find that the “letter of resignation,” in fact, exists.
Adjudicating such factual questions is beyond the Office’s purview under
KRS 61.880(2). The Office can, however, determine whether a requester has made a
prima facie case that a record should exist. And once such a showing is made, the
agency must explain the adequacy of its search. City of Fort Thomas, 406 S.W.3d at
848 n.3. Because the Appellant presented evidence that a written notice of the
employee’s termination of the contract should exist, the District was required to
describe the methods it used to search for it. The District’s ipse dixit assertion that it
conducted a “diligent search” does not meet its burden. For that reason, it violated
the Act.
Finally, regarding the requested policies, the District maintains that the
Appellant failed to “identify with ‘reasonable particularity’ those documents which he
wishes to observe” because he merely identified “a laundry list of topics that he
desires a policy for.”4 The District further asserts that, although some portions of the
requests for policies could “include information that could be contained in, inferred
from, or governed by multiple different policies, rules, or statutes,” it “is unable to
produce records that it does not have.” The District’s original response stated only
that “[i]t is unclear what specific policies [the Appellant is] seeking.”5 The District did
not state that it does not possess specific responsive policies. If responsive records do
4
In 04-ORD-028, this Office applied a standard of “reasonable particularity” to requests for on-site
inspection of records. That standard has since been abandoned. See, e.g., 22-ORD-255 n.1; 19-ORD-
182; 13-ORD-015; 10-ORD-189.
5
Here, the Appellant sought to inspect records in person. In such cases, the request need only
“describe[e] the records to be inspected.” KRS 61.872(2)(a). Such a description is sufficient if it is
“adequate for a reasonable person to ascertain the nature and scope of [the] request.” Commonwealth
v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). By requesting policies related to six topics or types of
conduct, the Appellant has adequately described records for purposes of an in-person inspection.not exist, an agency must affirmatively state that such records do not exist. See
Bowling, 172 S.W.3d at 341; see also 24-ORD-182. On appeal, the District now states
it does not possess policies responsive to the Appellant’s request, which it did not
state in its original response. Thus, the District’s original response, which instead
directed the Appellant to its entire collection of policies, violated the Act.6
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
#452
Distributed to:
Jerrol Summerville
Chelsea Holt, Graves County Schools
Ronnie Holmes, Chair, Graves County School Board
Matthew Madding, Superintendent, Graves County Schools
Jesse Wright, Board Attorney, Graves County School Board
6
The Appellant agrees that no policies responsive to his request exist.