24-ORD-271
December 23, 2024
In re: The Cincinnati Enquirer/City of Newport
Summary: The City of Newport (“the City”) did not violate the Open
Records Act (“the Act”) when it did not produce records it does not
possess.
Open Records Decision
The Cincinnati Enquirer (“Appellant”) submitted a request to the City seeking
“copies of any citations, tickets, police reports, or arrests regarding KRS 511.110” and
specified responsive records include “both violations and misdemeanors.” In its initial
response, the City denied the request because “the case is still pending.” The
Appellant then challenged the legal basis for the City’s denial. In response, the City
abandoned its original denial, stating, “Though this matter remains pending[,] here
is all we have.[1] No report.” This appeal followed.
On appeal, the City affirms that “there is no report or other documentation
regarding” the requested records, and “[t]his is all we have.” 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 additional records exist. Therefore, the City did not violate the Act when it
did not provide records it does not possess.
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
1
Because the City abandoned its denial and provided the Appellant with what it stated was all
responsive records, any dispute regarding that response is now moot. See 40 KAR 1:030 § 6.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
#476
Distributed to:
Brian D. Wright
City of Newport Open Records Department
Tiffany Myers, City Clerk, City of Newport
Stanley Jones, Legal Assistant, City of Newport
John Hayden, Assistant City Manager, City of Newport