25-ORD-092
April 3, 2025
In re: Kurt Wallace/Bullitt County Attorney’s Office
Summary: The Bullitt County Attorney’s Office (“the Agency”) violated
the Open Records Act (“the Act”) when it failed to respond to a request
for records within five business days. The Agency did not violate the Act
when it stated that it had no responsive records and the requester did
not present a prima facie case that any such records existed.
Open Records Decision
On February 11, 2025, Kurt Wallace (“the Appellant”) submitted a request to
the Agency for a variety of financial records.1 The Appellant also limited his request
to records from January 1, 2024, to the date of the request. Having received no
response from the Agency by March 10, 2025, the Appellant initiated this appeal.
Under KRS 61.878(1), a public agency has five business days after receiving a
request for records in which to issue a response either granting or denying the
request. Here, the Agency admits it failed to respond within that time because the
request was “inadvertently overlooked.” Therefore, although its omission was
unintentional, the Agency violated the Act by failing to timely respond to the
Appellant’s request.
1
Specifically, the Appellant requested (1) “[r]ecord of the County Attorney percentages of the
judgements collected and paid into the State Treasury;” (2) “[r]ecord of the recipients in the County
Attorney’s Office who received the percentages of the judgement collected and paid into the State
Treasury”; (3) “record identifying the recipient of said funds at the STATE TREASURY”; (4) “record
identifying the STATE TREASURY as located in Washington DC”; (5) “record showing the legal name
of the STATE TREASURY receiving said funds”; (6) “record showing that the STATE TREASURY is
the Kentucky Commonwealth Treasury”; (7) “records showing that the funds were not co-mingled
between STATE TREASURY and COMMONWEALTH OF KENTUCKY”; (8) “records showing the
location of the STATE TREASURY”; (9) “record showing the fiduciary of the STATE TREASURY both
who sent the funds and who received the funds”; and (10) “record showing the COMMONWEALTH
OF KENTUCKY Treasury is not distinct and separate from Kentucky Commonwealth Treasury.”25-ORD-XXX
Page 2
On appeal, regarding the sixth and eighth parts of the request, the Agency
states it “has possession of no such documents” but the records “may be obtained by
contacting the Kentucky State Treasurer’s Office.” Regarding the remaining portions
of the request, the Agency states it “has possession of no such documents and believes
that no such documents exist.” Once a public agency states affirmatively that it does
not possess any responsive records, the burden shifts to the requester to make a
prima facie case that the records do exist and that they are within the agency’s
possession, custody, or control. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t,
172 S.W.3d 333, 341 (Ky. 2005). If the requester establishes a prima facie case that
the records do or should exist, “then the 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). 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., 23-ORD-207; 21-ORD-177; 11-ORD-074. Here, the Appellant has not attempted
to make a prima facie case that the Agency possesses any of the requested records.
Accordingly, the Agency did not violate the Act when it could not fulfill the
Appellant’s request.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#112
Distribution:
Mr. Kurt Wallace
Tammy Baker, Esq.