25-ORD-083
March 31, 2025
In re: Paula Richardson Barber/Commonwealth Attorney, 21st Judicial
District
Summary: The Commonwealth’s Attorney for the 21st Judicial Circuit
(“the Commonwealth’s Attorney”) did not violate the Open Records Act
(“the Act”) when she denied under KRS 61.878(1)(h) a request for
records contained in his criminal investigation or litigation files. The
Commonwealth’s Attorney violated the Act when she failed to respond
to a portion of a request. However, the Commonwealth’s Attorney did
not violate the Act when she did not provide records she does not
possess.
Open Records Decision
Paula Richardson Barber (“Appellant”) submitted a request to the
Commonwealth’s Attorney seeking records related to the forfeiture of certain real
property.1 The Commonwealth’s Attorney denied subsection 1 of the request under
KRS 61.878(1)(h) as “records or information compiled and maintained by County
Attorneys or Commonwealth’s Attorneys pertaining to criminal investigations or
criminal litigation.” Regarding subsections 2, 3, 4, and 5, the Commonwealth’s
1
Specifically, the Appellant sought: (1) “correspondence of any kind” that mentions or is related to
civil forfeiture of a specific individual’s real property; (2) “All policies and procedures regarding civil
forfeiture of real property for the Commonwealth[’s] Attorney’s Office”; (3) “All bank checks paid and/or
received from any criminal and/or civil forfeiture properties” from 2020 to 2024; (4) “All bank records,
including but not limited to, checks, bank statements, and deposits for bank accounts [from which]
forfeiture funds are held or paid” from 2020 to 2024; (5) “All reports sent to or received from [the]
Prosecutor’s Advisory Counsel [sic] about forfeiture funds and/or property” from 2020 to 2024; and (6)
“All annual Asset Forfeiture Reports generated or possessed by the Commonwealth[’s] Attorney’s
Office” for the 2020 to 2024 fiscal years “for Bath, Rowan, Menifee and Montgomery Counties.”Attorney stated she does not possess the requested records but told the Appellant
that the Prosecutors Advisory Council does possess them. This appeal followed.2
Under KRS 61.878(1)(h), “records or information compiled and maintained by
county attorneys or Commonwealth’s attorneys pertaining to criminal investigations
or criminal litigation shall be exempted from the [Act] and shall remain exempted
after enforcement action, including litigation, is completed or a decision is made to
take no action.” Thus, “a prosecutor’s litigation files are excluded in toto from the
Act.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013).
“[T]his exemption is unique because it categorically exempts county attorneys’ and
Commonwealth’s attorneys’ criminal litigation or investigative files.” 23-ORD-106
(emphasis in original); see also 02-ORD-112 (finding investigative records in the
possession of a county attorney or Commonwealth’s attorney are “permanently
shielded from disclosure”).
The Appellant attempts to circumvent this categorical exemption by arguing
that the correspondence she seeks is related to the “civil forfeiture of an innocent
third party’s real estate” and is therefore not related to any criminal case file. In
response, the Commonwealth’s Attorney explains that the lien in question was placed
on the real property under KRS 218A.410 and KRS 218A.415 because fentanyl was
trafficked at the property. Moreover, the Commonwealth’s Attorney provides case
filings in the criminal litigation from which the lien arose. Although the individual
identified by the Appellant may not have been directly involved in the criminal
litigation, the lien placed on her property was related to the criminal litigation. Thus,
the correspondence related to this lien is exempt under KRS 61.878(1)(h), and the
Commonwealth’s Attorney did not violate the Act by withholding that
correspondence.
Next, the Appellant points out that the Commonwealth’s Attorney did not
respond to subsection 6 of her request. 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.”
2
The Appellant also asserts that the Commonwealth’s Attorney violated the Act by refusing to
accept hand-delivery of her request. In response, the Commonwealth’s Attorney explains that an
employee of the Appellant had requested she sign a document but did not allow the Commonwealth’s
Attorney to review the document before signing. Therefore, the Commonwealth’s Attorney states that
she refused to sign the document and the Appellant’s employee left. Ultimately, the Office is unable to
resolve the factual dispute regarding the circumstances of the delivery of the Appellant’s request. See,
e.g., 25-ORD-027.KRS 61.880(1). If an agency denies in whole or in part the inspection of any record,
its response must include “a statement of the specific exception authorizing the
withholding of the record and a brief explanation of how the exception applies to the
record withheld.” Id. A public agency may not simply ignore portions of a request.
See, e.g., 21-ORD-090. If the requested records exist and a statutory exception applies
that allows an agency to deny inspection, the agency must cite the exception and
explain how it applies. Conversely, if the records do not exist, then the agency must
affirmatively state that the records do not exist. See Bowling v. Lexington–Fayette
Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). The Commonwealth’s Attorney
admits it failed to include subsection 6 in its response due to a typographical error.
Thus, the Commonwealth’s Attorney violated the Act when it did not respond to
subsection 6 of the Appellant’s request.3
Here, the Commonwealth’s Attorney maintains that it does not possess records
responsive to subsections 2 through 6 of the Appellant’s request. 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,
172 S.W.3d at 341. 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, 406 S.W.3d at 848 n.3 (citing Bowling, 172
S.W.3d at 341).
The Appellant asserts that the Commonwealth’s Attorney should possess the
bank records relating to forfeitures, and then asks, “If the [Commonwealth’s
Attorney] does not possess or maintain their own bank records, who does?” But a
requester’s bare assertion that an agency must possess the requested records is
insufficient to establish a prima facie case that the agency in fact does possess the
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. Notwithstanding the Appellant’s failure to present a prima facie case that
the Commonwealth’s Attorney’s possesses the records, the Commonwealth’s Attorney
explains that “[a]ll access and information related to the forfeiture account” is
maintained by the Prosecutors Advisory Council. Accordingly, the Commonwealth’s
3
On appeal, the Commonwealth’s Attorney explains that it does not possess the records sought by
subsection 6 of the request and they are, instead, in the possession of the Prosecutors Advisory Council.Attorney did not violate the Act when it could not provide the requested bank
records.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
#089
Distributed to:
Paula Richardson Barber, Esq.
Ashton McKenzie, Commonwealth’s Attorney
4
The Appellant does not contest the Commonwealth’s Attorney’s assertion that it does not possess
any other requested records.