25-ORD-001
January 2, 2025
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 it had not
created.
Open Records Decision
On November 3, 2024, Jeffrey Gegler (“the Appellant”) submitted a request to
KSP for certain records, including body worn camera footage, related to its arrest of
two individuals in Carroll County on October 31, 2024. KSP timely 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 the
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 2023 news article describing KSP’s
body-worn camera system and stating that some officers would be equipped with
body-worn cameras. However, KSP explains on appeal that “Appellant submitted his
[request] so early that KSP had not had an opportunity to generate any reports that
would have been responsive” to the request. Accordingly, to the extent the Appellant
may have established a prima facie case that KSP did have responsive records in its
custody 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 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
#491
Distributed to:
Mr. Jeffrey Gegler
Samantha A. Bevins, Esq.
Ms. Stephanie Dawson
Lt. Mitchel S. Hazelett