25-ORD-063
March 10, 2025
In re: Kurt Wallace/Bullitt County Attorney’s Office
Summary: The Bullitt County Attorney’s Office (“the County Attorney”)
violated the Open Records Act (“the Act”) when it partially denied the
Appellant’s first request for records without citing any applicable
exemption or otherwise accurately explaining its initial denial of that
portion of the request. The County Attorney did not violate the Act when
it did not provide records that do not exist.
Open Records Decision
Kurt Wallace (“the Appellant”) submitted a 39-part request to the County
Attorney, seeking records related to various aspects of the County Attorney’s
operations.1 In response, the County Attorney provided two employees’ oaths of office
and advised that there are no other “public records in its possession that are
responsive to the requests.” This appeal followed.
Upon receiving a request for records under the Act, a public agency “shall
determine within five (5) [business] days . . . after the receipt of any such request
whether to comply with the request and shall notify in writing the person making the
request, within the five (5) day period, of its decision.” KRS 61.880(1). Id. A public
agency cannot simply ignore portions of a request. See, e.g., 21-ORD-090.
Among the Appellant’s requests, he sought a copy of the County Attorney’s
“Form W-9.” Although the County Attorney said it possessed no additional records
responsive to the Appellant’s request, on appeal, it states that it does possess a record
responsive to this portion of the Appellant’s request. Accordingly, the County
Attorney violated the Act when it failed to produce a record it possessed without citing
1
The request sought records related to various bonds, policies, three individuals’ oaths of office to
practice law and bar cards, training records, and the County Attorney’s IRS Form W-9.any applicable exemption or otherwise accurately explaining its initial denial of that
portion of the request.2
Regarding the remaining portions of the Appellant’s request, the County
Attorney maintains that it does not possess any responsive records. 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 made a prima facie case that the County Attorney
possesses any requested records that were not provided. Instead, the Appellant
asserts that, if the County Attorney does not possess the records he seeks, then it and
its employees are operating illegally.3 But that bare allegation offers no evidence
proving that the requested records exist. A requester’s bare assertion that an agency
possesses a requested record is insufficient to establish a prima facie case that the
agency, in fact, possesses it. See, e.g., 22-ORD-040. Rather, to present a prima facie
case that the agency possesses or should possess the requested record, the requester
must point to some statute, regulation, or factual support for this contention. See,
e.g., 21-ORD-177; 11-ORD-074. As the Appellant has provided only a bare assertion,
he has not presented a prima facie case that County Attorney possesses any of the
records he seeks. Accordingly, the County Attorney did not violate the Act when it
did not provide records that do not exist in its possession.
Finally, the County Attorney states that “bar cards” for two if its employees
exist but are not public records in its possession. Public records are records that have
been “prepared, owned, used, in the possession of, or retained by” the public agency.
KRS 61.870(2). Here, the County Attorney explains that the identified bar cards are
in the personal possession of its two employees, and it does not possess any copies of
them. The record before the Office does not suggest that bar cards are “prepared,
owned, used, in the possession of or retained by a public agency.” Cf. KRS 61.870(2).
2
The County Attorney states that this record has been provided it to the Appellant.
3
That allegation is beyond the scope of this appeal. 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”).Thus, the County Attorney did not violate the Act when it did not produce any bar
cards that it does not possess.4
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
#063
Distributed to:
Kurt Wallace
Tammy Baker, Bullitt County Attorney
4
The Appellant also alleges the County Attorney violated the Act by not providing the name and
location of the official records custodian for the requested records. See KRS 61.872(4). But the County
Attorney advised the Appellant that it does not possess the requested records, not that another public
agency possesses them. Thus, the County Attorney could not have identified an official records
custodian for the requested records.