24-ORD-276
December 23, 2024
In re: Michael Douglas Grant/Kentucky Transportation Cabinet
Summary: The Kentucky Transportation Cabinet (the “Cabinet”) did
not violate the Open Records Act (“the Act”) when it did not grant a
request to inspect records that it does not possess.
Open Records Decision
Michael Douglas Grant (“Appellant”) submitted a request to the Cabinet
seeking the “Hydrology Analysis” for a specific property in “Bardstown Kentucky.”1
The Cabinet granted the Appellant’s request and provided “nearly 5,000 pages” of
records. Having claimed the record he requested was not contained in the “5,000
pages,” the Appellant requested the “Hydrology Report” for the property he listed.
The Cabinet denied his request because, “[a]fter a diligent search, there are no
records responsive to [his] request.” This appeal followed.
On appeal, the Cabinet maintains it does not possess a hydrology report. 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 makes 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, to make a prima facie case that the
Cabinet possesses the “Hydrology Analysis” record, the Appellant asserts that the
Cabinet is “altering the property” and that “[i]t is inconceivable that an
agency . . . would not have done a hydrological study on the affected area.”
1
The Appellant’s request contained four subparts. The first three subparts are related to various
records regarding a stretch of U.S. Highway 150 on the Nelson and Washington County line. This
appeal only concerns the “Hydrology Analysis,” or the fourth subpart.In response, on appeal, the Cabinet asserts that it does not possess any
“hydrology analysis for this highway project” because “the design consultant has not
yet produced them.” It explains that it typically receives a “preliminary” hydrology
report “at the joint/final inspection meeting which the Cabinet has not yet held for
this project.”2 The Office has found that a requester’s bare assertion that an agency
should possess the requested record is insufficient to establish a prima facie case that
the agency possesses such records. See, e.g., 23-ORD-142; 22-ORD-040. Here, the
Appellant has not made a prima facie case that the Cabinet possesses additional
records responsive to his request. Accordingly, the Cabinet 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
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/ Matthew Ray
Matthew Ray
Assistant Attorney General
#484
Distributed to:
Michael Douglas Grant
Kentucky Transportation Cabinet, Open Records Department
Todd T. Shipp
Jesse W. Rowe
2
The Cabinet further explains that the design consultant has “performed some low-level hydraulic
analysis for the preliminary highway layout,” but “this analysis was never submitted to, approved by,
or reviewed by the Cabinet.” The Act defines public records as certain materials “which are prepared,
owned, used, in the possession of or retained by a public agency.” KRS 61.870(2). In the absence of
evidence to the contrary, such materials are not “public records” and are not subject to the Act. See 24-
ORD-153 (finding that materials in the possession of a private entity contracted to perform work for
the agency are not public records subject to the Act because they had not “been prepared, owned, used,
in the possession of, retained, or even seen by the” agency).