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24-ORD-274

December 23, 2024

In re: Jeffrey Gegler/Kentucky State Police

Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it could not provide records that were not
yet within its custody or control.

Open Records Decision

On November 8, 2024, Jeffrey Gegler (“the Appellant”) submitted a request to
KSP for certain records related to its investigation of an incident in which two
Bowling Green Police Department officers were shot at a mental health facility on
November 6, 2024. KSP responded on November 12, 2024, stating it had no
responsive records “because the investigation ha[d] only just begun” and the
Kentucky Incident-Based Reporting System (“KYIBRS”) report had not yet been
completed. This appeal followed.

Once a public agency states affirmatively that it has no responsive records, the
burden shifts to the requester to present a prima facie case that the agency does
possess records. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333,
341 (Ky. 2005). A requester’s bare assertion that an agency must possess requested
records is insufficient to establish a prima facie case that the agency actually
possesses such records. See, e.g., 22-ORD-040. Rather, to present a prima facie case
that the agency possesses or should possess the requested records, the requester must
provide some statute, regulation, or factual support for that contention. See, e.g., 21-
ORD-177; 11-ORD-074.

Here, the Appellant provides a copy of a letter from the Bowling Green Police
Department dated November 11, 2024, stating that all records relating to the incident
had been sent to KSP for investigation. However, KSP explains on appeal that it did
not receive the records from the Bowling Green Police Department until November
15, 2024. Thus, as of the time KSP issued its response on November 12, 2024, it did
not yet possess any responsive records. Accordingly, to the extent the Appellant may
have established a prima facie case that KSP did have responsive records in itscustody or control at that time, KSP has rebutted that presumption. Accordingly, KSP
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

#486

Distributed to:

Mr. Jeffrey Gegler
Samantha A. Bevins, Esq.
Ms. Stephanie Dawson
Lt. Mitchel S. Hazelett

LLM Summary
In 24-ORD-274, the Kentucky State Police (KSP) was found not to have violated the Open Records Act when it responded that it had no records related to an investigation because the records had not yet been received from another department. The decision emphasizes that the burden shifts to the requester to present a prima facie case that the agency does possess records, which requires more than a bare assertion. The decision cites previous opinions to support the principles regarding the burden of proof and the requirements for establishing a prima facie case.
Disclaimer:
The Sunshine Law Library is not exhaustive and may contain errors from source documents or the import process. Nothing on this website should be taken as legal advice. It is always best to consult with primary sources and appropriate counsel before taking any action.
Requested By:
Jeffrey Gegler
Agency:
Kentucky State Police
Type:
Open Records Decision
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