25-ORD-084
March 31, 2025
In re: Vivian Miles/Kentucky State Treasury
Summary: The Kentucky State Treasury (“the Agency”) violated the
Open Records Act (“the Act”) when it failed to respond to a request to
inspect records within five business days of receiving it. The Agency did
not violate the Act when it did not provide records it does not possess.
Open Records Decision
On February 20, 2025, Vivian Miles (“Appellant”) submitted a request to the
Agency seeking “Records of payments/disbursements to” two specific individuals “or
any escrow firm” related to a specific civil case. Having received no response to her
request by March 3, 2025, the Appellant initiated this appeal.
Under KRS 61.880(1), 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.” Here, the
Appellant submitted her requests to the Agency on February 20, 2025, but had not
received a response as of March 3, 2025, the seventh business day following
submission of the requests. The Agency does not claim it responded within five
business days of receiving the request. Accordingly, the Agency violated the Act.
On appeal, the Agency maintains that it does not possess any records
responsive to 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 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 becalled 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
disbursement records exist. Moreover, the Agency explains that the case related to
the Appellant’s request was dismissed by the court. Therefore, the Agency states that
no payments or disbursements associated with that case exist. Thus, the Agency 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
#091
Distributed to:
Vivian Miles
Beverly K. Stoner, Administrative Branch Manager, Kentucky State Treasury
Sam P. Burchett, General Counsel and Special Assistant, Executive Staff, Kentucky
State Treasury
1
The Agency argues that this appeal should be dismissed as withdrawn given the Appellant’s
subsequent email to it stating, “Thank you for the explanation, if there are ‘no records’ then there are
no records.” That email was not directed to the Office and does not clearly state that the Appellant is
withdrawing this appeal. Moreover, the Appellant sent additional emails complaining about the
Agency’s failure to timely respond to her request. Accordingly, the Office declines to consider the
Appellant’s email to the Agency as a request to withdraw her appeal.