24-ORD-261
December 6, 2024
In re: J. Davis/Kentucky Real Estate Commission
Summary: The Kentucky Real Estate Commission (“the Commission”)
did not violate the Open Records Act (“the Act”) when it did not produce
records it does not possess.
Open Records Decision
J. Davis (“the Appellant”) submitted a request to the Commission seeking
“documentation showing the final decision of the” Commission in a specified
complaint. The Appellant also request a “file-stamped copy of this Open Records
Request showing the date of receipt by” the Commission. The Commission provided
the Appellant with a copy of his request but stated it did not possess additional
records responsive to his request. This appeal followed.1
On appeal, the Commission maintains that it does not possess a final decision
related to the specified complaint. 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).
Here, the Appellant has not established a prima facie case that the records exist.
1
On appeal, the Commission asserts the Appellant is not a resident of the Commonwealth. Under
KRS 61.872(2)(a), only a “resident of the Commonwealth shall have the right to inspect public records.”
Because the Commission did not deny the Appellant’s request on the basis of residency, and because
the Commission’s response did not otherwise violate the Act, the Office need not address that issue.Therefore, the Commission did not violate the Act when it did not provide records it
does not possess.2
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
#454
Distributed to:
J. Davis
Gerald W. Florence, Records Custodian/Executive Advisor, Kentucky Real Estate
Authority
C. Rene Rogers, Staff Attorney III, Kentucky Real Estate Authority
Tracy W. Carroll, Executive Director, Public Protection Cabinet, Kentucky Real
Estate Authority
2
To the extent the Appellant complains about the Commission’s processing of a particular
complaint, that matter is beyond the scope of his appeal related to his records request. See
KRS 61.880(2)(a) (authorizing the Office to issue “a written decision stating whether the agency
violated provisions of KRS 61.870 to 61.884”).