25-ORD-073
March 24, 2025
In re: Darcie Davis/Morgan County Fiscal Court
Summary: The Morgan County Fiscal Court (“the Fiscal Court”)
violated the Open Records Act (“the Act”) when it failed to properly
invoke KRS 61.872(5) to delay its production of public records. The
Fiscal Court did not violate the Act when it did not provide records it
does not possess.
Open Records Decision
On September 20, 2024, Darcie Davis (“Appellant”) submitted a request to the
Fiscal Court seeking “maintenance and deed records related to” three specified roads.
That same day, the Fiscal Court acknowledge receipt of the request and stated that
its “normal response time is 30 days from receipt.” On October 24, 2024, the Appellant
submitted a follow-up email asking when she could expect to receive responsive
records. On October 28, 2024, the Fiscal Court stated that it could not locate
maintenance records for the identified roads. This appeal followed.
A public agency has five business days from the receipt of a request for public
records made under the Act to fulfill the request or deny it and explain why.
KRS 61.880(1). A public agency can delay its production of responsive records beyond
five business days if the records are “in active use, in storage or not otherwise
available,” but it must “immediately notify the applicant” and give “a detailed
explanation of the cause . . . for further delay . . . and earliest date on which the public
record[s] will be available for inspection.” KRS 61.872(5).
Here, the Fiscal Court notified the Appellant on September 20, 2024, that it
would take 30 days to issue a response. However, the Fiscal Court did not specifically
invoke KRS 61.872(5) or notify the Appellant of the earliest date on which the public
records would be available. Although the Fiscal Court stated its “normal responsetime is 30 days from receipt,” it failed to meet even that self-imposed deadline to
provide the records. As a result, the Fiscal Court violated the Act when it failed to
properly invoke KRS 61.872(5) to delay its production of public records.
Regarding the Appellant’s request for maintenance records, neither party
specifically addresses the substance of the Fiscal Court’s October 28 response, in
which it stated it could not locate 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
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, the Appellant has not established a prima facie case that the
maintenance records exist. Therefore, the Fiscal Court did not violate the Act when
it did not provide records it does not possess.1
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
1
Under KRS 61.880(2)(a), a party wishing to appeal a denial of a request for public records must
“forward to the Attorney General a copy of the written request and a copy of the written response
denying inspection.” In her appeal, the Appellant asserts various violations by the Fiscal Court related
to requests she submitted for copies of ordinances, meeting notes, and security footage from a fiscal
court meeting. Although the Appellant submitted a copy of her request for the ordinances and meetings
notes, she did not provide a copy of the Fiscal Court’s response regarding those records. With respect
to her request for security footage, the Appellant did not provide a copy of either her original request
or the Fiscal Court’s response. Because the Appellant did not submit copies of both her original
requests and the Fiscal Court’s responses, those requests for records are not properly before the Office
in this appeal.#080
Distributed to:
Darcie Davis
Jim Gazay, Morgan County Judge Executive
Myles Holbrook, Morgan County Attorney