25-ORD-096
April 8, 2025
In re: David McAnally/Kentucky Horse Racing and Gaming Corporation
Summary: The Kentucky Horse Racing and Gaming Corporation (“the
Corporation”) did not violate the Open Records Act (“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
David McAnally (“Appellant”) submitted a 13-part request to the Corporation
seeking records related to a variety of employment records, the Corporation’s policies,
and the Appellant’s termination. In response, citing KRS 61.872(5), the Corporation
stated that “due to the voluminous nature of the potentially responsive documents to
be reviewed” he would receive responsive records on or before March 28, 2025. The
Appellant did not object to this response as to the first 12 subparts of his request, but
took issue as it related to subpart 13, which requested “[a]ny information on why it
appears [the Appellant’s] Unemployment was not paid for the last quarter of CY 24
and . . . CY25 or any other items were not paid.”1 In response, the Corporation stated
that it “does not have any records to send” the Appellant regarding subpart 13 of his
request.2 This appeal followed.3
On appeal, the Corporation maintains that it “does not have any responsive
records to [the Appellant’s] request.” Once a public agency states affirmatively that
it does not possess any responsive records, the burden shifts to the requester to make
1
The Appellant specified that this requested sought “emails, folders, phone records, texts, taped
team meetings, meeting requests, team meetings regarding the above” and identified eleven specific
individuals.
2
The Corporation did advise that it had contacted the Kentucky Education and Labor Cabinet, and
the issues regarding the Appellant’s unemployment payments would be resolved.
3
On appeal, the Appellant does not challenge the Corporation’s invocation of KRS 61.872(5) or the
timeliness of the Corporation’s responses.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 makes 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 make 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,
in an effort to make a prima facie case that the Corporation possesses responsive
records, the Appellant cites KRS 230.225(7), which requires the Corporation’s records
to be open and subject to public inspection in accordance with the Act. The Appellant
also provides a copy of a memorandum of understanding between the Corporation
and the Public Protection Cabinet (“PPC”) which states that the PPC will “maintain
records related to . . . payroll processing.” Thus, the Appellant has presented a prima
facie case that the PPC, on behalf of the Corporation, maintains payroll processing
records. However, the Appellant did not request general payroll records. Rather, he
requested records containing information regarding why his unemployment was not
paid. The Appellant has not presented a prima facie case that records containing that
information exist in the possession of either the Corporation, or the PPC on behalf of
the Corporation.
Further, in order to make a prima facie case that particular records exist, the
Appellant provides copies of emails he had sent to the Corporation regarding his
unemployment. The emails consist of the Appellant asking why his “Unemployment
was not reported,” the Corporation’s employee stating she would look into this matter,
and the Appellant thanking her. The Corporation, on appeal, explains the emails
were not provided in response to the request because they did “not explain why his
unemployment would not have been paid and [are] therefore non-responsive.” The
Office agrees that the provided emails are not responsive to the Appellant’s request.
Thus, the Appellant did not present a prima facie case that responsive records exist
by providing emails he has exchanged with the Corporation.
Accordingly, the Corporation 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 under KRS 61.880(5) and KRS 61.882 within 30 days fromthe 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
#116
Distributed to:
David McAnally
Ashleigh Bailey, Chief Legal Officer
KHRGC Open Records